October 2020

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In between talking about eminent domain-y songs, the goofy cult film “Snakes on a Plane” (yes, we really do have a cast-signed poster of that film in our office), and other fun stuff, we returned to the Pendulum Land Podcast for part II of our guest spot, where we also discussed Virginia Uranium, Inc. v. Commonwealth, No. CL15-623 (July 30, 2020), a recent decision from a Virginia trial court about regulatory takings and “damagings.” 

[Stream the podcast above, or better yet, subscribe and become a regular listener. The podcast is both entertaining and informative.]

The Virginia Uranium case involves a long-standing — but “temporary” — moratorium on uranium mining, and the court’s order analyzes Palazollo, the Salt-peter case (Lord Coke alert!), Penn Central, and Lucas.

The court concluded that the inability to mine uranium was a damaging under the Virginia Constitution because it “directly…

Continue Reading In Which We Return To The Pendulum Land Podcast To Talk “Snakes on a Plane,” Eminent Domain Songs, And What Might Be Virginia’s First True Regulatory Takings Case

You know those times you go to the store and try to get a refund on something you’ve purchased, and instead of cash back, you get a gift card, only useable at the same store? Or when, instead of refunding your plane ticket, the airline gives you some limited-time credit for a future flight? Anyone like those?

Well, a fascinating case from the New Mexico Court of Appeals, Premier Trust of Nevada, Inc. v. City of Albuquerque, No. A-1-CA-34784 (Oct. 1, 2020) reminds us of the risks associated with these things.

Albuquerque has an impact fee ordinance which developers must pay to offset the costs of needed infrastructure such as roads, drainage, parks, and public safety facilities. To satisfy the exaction requirement, the property owner could either pay money, build the improvements, or give the city property. If the value of these exactions was more than the impact…

Continue Reading NM App: No Property In Impact Fee Gift Card

Here’s the recording of this morning’s oral arguments in an important eminent domain case being considered by the Wisconsin Supreme Court. (We had some trouble with the stream, so if the above video doesn’t work, try this link instead.)

This is a case we’ve been following (court of appeals’ opinion in favor of the property owner here), in which the issue is whether Wisconsin’s eminent domain statute — which requires that a condemnor’s “jurisdictional offer” be “based” upon a “full narrative appraisal” of “all property proposed to be acquired” — allows the Wisconsin DOT to provide an appraisal that omits severance, and then later introduce a new appraisal that includes severance. See Wis. Stat. §§ 32.05(3)(e), 32.05(2)(a)-(b). The property owner successfully argued that allowing the DOT to do this skirts the text of the statute, and its purpose. The jurisdictional offer’s primary function is to…

Continue Reading Wisconsin Supreme Court Oral Argument: Can Condemnor Omit Severance From The “Full Narrative Appraisal” Required For The Jurisdictional Offer?

This just in in a case we’ve been following. In In re Certified Questions, No. 161492 (Oct. 2, 2020), the Michigan Supreme Court responded to the federal court’s certified question about whether, under Michigan’s statutes, the governor has the authority to effectively extend a declared state of emergency by terminating an expiring declaration and issuing a new declaration “again declaring a ‘state of emergency’ and
‘state of disaster’ under the EMA for the identical reasons as the declarations that had just been terminated — the public-health crisis created by COVID-19.” Slip op. at 8.

The court held no, the statute does not allow the governor to do that, in the absence of the Legislature’s approval of an extension:

The Governor argues that because MCL 30.403(3) and (4) provide that ‘[t]he governor shall, by executive order or proclamation, declare a state of [disaster/emergency] if he or she finds [a…

Continue Reading Michigan SCT: Without Legislature’s Assent, Governor’s Emergency Powers Terminate At 28 Days

This one doesn’t involve a takings claim, but since we’re tracking the cases involving coronavirus-related shut down orders and restrictions, we thought we would post this here too.

In Harvest Rock Church, Inc. v. Newsom, No. 20-55907 (Oct. 1, 2020), a panel of the Ninth Circuit rejected a church’s request for an injunction pending appeal of the District Court’s denial of a preliminary injunction. The church is challenging the California governor’s order that have the effect of restricting religious services even though the orders apparently do not expressly target religious services:

The evidence that was before the district court does not support Harvest Rock’s arguments that the Orders accord comparable secular activity more favorable treatment than religious activity. The Orders apply the same restrictions to worship services as they do to other indoor congregate events, such as lectures and movie theaters. Some congregate activities are completely prohibited in…

Continue Reading Ninth Circuit, Over Dissent, Denies Injunction For Church COVID Restrictions

Here’s the latest in a case we’ve been following.

In Berry v. City of Chicago, No. 124999 (Sep. 24, 2020), the Illinois Supreme Court avoided the analysis that split the court of appeals, and upheld the dismissal of a very “torty” inverse condemnation claim. The plaintiffs alleged that the City of Chicago’s program to replace old water meters, water mains, and lead pipes had taken their property because it made the service lines “more dangerous” by using copper and galvanized iron, which leads the lead pipes to corrode (the lede is that copper leads lead pipes to corrode). In addition to tort damages, the plaintiffs sought compensation for the taking. 

No deal, held the court, and its ruling is pretty straightforward. The court didn’t really see the arguments the same way as the court of appeals, which split on the question of how the “public” is defined for…

Continue Reading Burying The Lead: No Taking When City’s Water Pipe Replacement Program Alleged To Result In More Danger To Owners’ Properties