2018

Check out this recent article by lawprof Timothy Mulvaney, “Non-Enforcement Takings.” We’re used to situations in which government regulation results in a takings claim, but Professor Mulvaney asks about cases in which the government’s inaction is argued to result in a taking.

Here’s the abstract:

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution’s Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same “fairness and justice” grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly entitled to…

Continue Reading Takings By Government Inaction?

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This fall, I’ll be teaching a new course at the William and Mary Law School in Williamsburg, Virginia.

Here’s the description of Property Rights: Law and Theory (Law 608) from the course catalog:

Property rights and property theory have been essential components of Anglo-American law for centuries, and the protection of the right of private property ownership is one of the foundations on which the U.S. Constitution, the Bill of Rights, and the post-Civil War Amendments are built. In more recent times, however, property law has taken on a new role, and has been viewed differently than in the past, especially in light of the development of environmental law and the evolving concept of public trust.

Property Rights Law and Theory will focus on the history, policy, and, to some extent, the politics of property law, property rights, and related legal topics. We will examine how the right of…

Continue Reading The Paper Chase Is On!

Remember the Tom Cruise/Steven Spielberg flick Minority Report? That’s the one based on Philip K. Dick’s short story in which the police force’s PreCrime unit can presage that a citizen will violate the law in the future, so they arrest him now even though he has committed no crime. 

That’s the same vibe we get from the recent oral arguments in a case in which the Hawaii Supreme Court is being asked to resolve two fundamental questions in the latest case involving the Thirty Meter Telescope up on the top of the Big Island’s Mauna Kea.  

First, whether someone can possess a cultural property interest in publicly-owned land. Flores, a native Hawaiian, asserted he had such an interest in the land on which the telescope is planned. Second, if so, whether the State land agency’s consenting to the University of Hawaii’s sublease of that land to the TMT puts Flores’ interests…

Continue Reading Department Of Precrime: HAWSCT Considers Cultural “Property” In Public Land

Here’s the latest “Map Act” case from North Carolina, one that touches a bit on the metaphysical side because it gets into the question of whether an ongoing inverse condemnation case in which the N.C. Supreme Court has already ruled that property was taken (although it did not determine the interest taken), prevents the government from instituting a direct condemnation lawsuit to short-circuit the case.

In Dep’t of Transportation v. Stimpson, No. COA17-596 (Mar. 20, 2018), the N.C. Court of Appeals held that the DOT could not institute an eminent domain action to take land that it had already been deemed to have taken — or be taking — in an inverse condemnation action.

The facts of the case are pretty straightforward. North Carolina’s Map Act (as we detailed here) allows the DOT to designate land for future highway acquisition and prohibits development in the interim. The N.C.

Continue Reading DOT Can’t Condemn Land It Has Already Deemed To Be Taking In Inverse Case

For those of you who have not recently attended the ALI-CLE Eminent Domain and Land Valuation Litigation Conference (which we held recently in Charleston, and which we’re planning for in Palm Springs in Jnauary 2019), here’s another sampling of the kind of thing we do.

It’s our New Jersey colleague Anthony Della Pelle talking about the issues in “Orange Barrel Litigation: Temporary Takings Caused by Construction,” in the session he shared with Professor Matthew Holt.

A very informative session, and these clips only give a small taste. More here, from ALI-CLE, including links to the on-demand video sessions we recorded in Charleston.  

It isn’t too early to mark your calendars for Palm Springs, January 24-26, 2019. Stay tuned here for further details as they become available.

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Continue Reading Tony Della Pelle On “Orange Barrel Litigation: Temporary Takings Caused By Construction”

A slight divergence from our usual fare today, because we’re looking at a tort case. A tort case? Yes, because this one has lessons for our appellate practitioner colleagues. The lesson: when you are in a court of last resort, “your” case isn’t all yours, and even if you have framed your issues carefully, sometimes the court may go where you made clear you didn’t want it to go.   

Here’s the set up. The largest part of the Hawaii Supreme Court’s jurisdiction is discretionary review of decisions of the Intermediate Court of Appeals. Five Justices sit on the court. Our rules of appellate procedure do not specify how many you need to convince in order for the court to “accept” certiorari (we call it “accepting” review, not “granting” cert). The coconut wireless reports, however, that it takes three votes to review a case. Maybe that’s correct or maybe it…

Continue Reading Appellate Lessons: Even When You Frame Your Issues Well, “Your” Case Isn’t Really Yours

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Here’s the printable brochure with the details on the 32nd Annual Land Use Institute in Detroit, April 19-20, 2018. We’ve plugged the program before so we won’t do so again, except to say that you really should attend because (1) it’s a very good program that won’t take much of your time (fly in for the Thursday afternoon program, stay a night, fly home on Friday evening); (2) Detroit is the place to be these days; and (3) it’s one of the best deals in CLE credits, with tuition as low as $400.

2018 Land Use Institute Brochure Detroit 5 2018

Continue Reading April 19-20, 2018: Land Use Institute, Detroit (Printable Brochure)

In North Carolina Dep’t of Transportation v. Mission Battleground Park, No. 361PA16 (Mar. 2, 2018), the North Carolina Supreme Court confirmed that real estate brokers — and not only appraisers — can testify about the fair market value of condemned property. 

The background is fairly routine — the DOT condemned a portion of a tract of land for a highway project, made a $276,000 deposit which the landowner considered insufficient, and they went to trial. The owners asked a licensed real estate broker to testify about fair market value. He prepared a report which relied on the before-and-after method, and concluded that just compensation was $3.734 million.

The DOT sought to preclude him from testifying, arguing that brokers are limited by statute to preparing a report on probable selling price, and therefore could not testify as an expert regarding fair market value. The trial court agreed. The owners offered…

Continue Reading NC: Real Estate Broker Is Qualified To Testify About Fair Market Value

Is climate change responsible for the severity of California’s recent spate of devastating wildfires? Several big utility companies are being sued or threatened with inverse condemnation for their roles, if any, in the damage. A story today in Climate Liability News (“California Utilities, Climate Change and Wildfires: A Liability Quagmire“) details the response by the utilities, which includes pointing the finger at climate change, petitioning the California PUC for rate hikes, and asking the California legislature for changes to the state’s inverse condemnation law:

The bill is a reaction to a debate over whether San Diego Gas & Electric could pass on the $379 million from the 2007 fires that it couldn’t cover through insurance. The commission denied the utility’s request last November because it said the company caused the fire with improper maintenance of power lines. The commission also said it wouldn’t automatically deny rate increases…

Continue Reading California Wildfires, Inverse Condemnation, And Climate Change

Here’s the latest case on our (second) favorite subject, recovery of attorneys’ fees.

First, let’s be frank: in our experience, many courts don’t really care all that much for requests for fees and costs, for whatever reason. Maybe it’s because the merits have already been decided and these requests are collateral “tails.” Maybe it’s because they don’t think that the applying parties deserve to be reimbursed. Maybe it’s because many judges do not come from a private practice background and therefore are not fully appreciative of the cost of private representation. Maybe it’s because the evidentiary details required to support these requests can be … unexciting. Who can say.

And, as we’ve mentioned previously here, assembling a request for attorneys fees can be a slog. Does anyone really like going through their time entries and bills, redacting stuff, tracking down costs, gathering testimony that fees are “reasonable,” and the like?

Continue Reading Nebraska: Eminent Domain Fee Statute Only Requires Reimbursement Of Fees “Actually Incurred” (So Unsupported Claim Is Right Out)