2020

We listened live last week, but the court has now made the recording available in Johnson v. City of Suffolk.

This is what we call the “oyster takings” case in which Nansemond River oystermen claim that their property was taken when the City of Suffolk and the Sanitation District dumped sewage into the river and declared a “condemnation zone” (i.e., no oyster harvesting).

This is a case at the intersection of property and takings law, and environmental protection. And the public trust concept of jus publicum. The oystermen own a lease from the State of Virginia for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia is so well known for. But they were forced to bring an inverse condemnation claim in state court, asserting that the City’s dumping of wastewater in the river — and prohibiting the…

Continue Reading Recording Now Available In Virginia Supreme Court Oral Arguments In Takings, Property, And Public Trust Case

The docket is pretty crowded today, so we don’t have that much time to digest and summarize the Nebraska Supreme Court’s opinion in Douglas County School Dist. No. 10 v. Tribedo, LLC, No. S-19-986 (Nov. 6, 2020). But we recommend you read it (or at least scan it).

Short story: Tribedo got the better of the School District at an eminent domain valuation trial on a partial taking. Although Tribedo’s appraiser opined to a higher figure, the jury was closer to his number than the District’s expert’s. So the District appealed, arguing the trial court wrongly rejected the District’s jury instruction, and that the jury’s verdict — which included severance damages — was not supported by the evidence because neither party’s expert specifically opined about severance damages.

As we know, both of these are hard hills to climb. And sure enough, the Supreme Court rejected both arguments. First, it…

Continue Reading Nebraska: Condemnor Asking To Overturn Jury’s Compensation Verdict For (Alleged) Evidentiary Errors Asks Too Much

Screenshot_2020-11-05 Legal challenges regarding COVID-19 emergency orders

Join us next Tuesday, November 10, 2020 at 3pm ET (12 noon Pacific) for the free webinar “Shutdowns, Closures, Moratoria, and Bans,” produced by Pacific Legal Foundation and Owners’ Counsel of America.

Along with my colleagues Leslie Fields (Executive Director, OCA), and Jim Burling (PLF), I’ll be talking about the legal foundations for objections, some of the cases that have made their way to decision, and what the future might look like. To register (did I mention it was free?) go here.

Here’s the program description:

Governors and state legislatures across the country have implemented an array of policies in an attempt to contain the virus and its socioeconomic impacts. Many of these policies broadened the scope of government power while placing a heavy burden on property owners and businesses already struggling with the pandemic.

Join representatives from Pacific Legal Foundation and Owners’ Counsel of America as…

Continue Reading Join Us: Tuesday, Nov. 10, 2020 (3pm ET, 12n PT) For Free (!) Webinar: “Shutdowns, Closures, Moratoria, and Bans”

Here’s the latest in a case we’ve been following even before its inception (last semester, our William and Mary class visited the site and witnessed the oyster operation affected – see video above), Johnson v. City of Suffolk.

This morning, the Virginia Supreme Court heard oral arguments in the case, and we livestreamed it during our class. (We can’t post the audio recording just yet; those are released on Fridays, so hold on just a bit longer if you missed the live event.)

This is what we call the “oyster takings” case in which Nansemond River oystermen claim that their property was taken when the City of Suffolk and the Sanitation District dumped sewage into the river and declared a “condemnation zone” (i.e., no oyster harvesting).

This is a case at the intersection of property and takings law, and environmental protection. And the public trust concept of…

Continue Reading Virginia Supreme Court Oral Arguments In Takings, Property, And Public Trust Case

This semester, we’re teaching two courses at the William and Mary Law School: the usual Eminent Domain & Property Rights (our regularly-scheduled fall semester course), and Land Use. If we were to try and create a hypothetical for the final exam in either class, we couldn’t do better than the actual fact pattern and arguments presented to the Texas Court of Appeals in City of Dickinson v. Stefan, No. 14-18-00778-CV (Oct. 27, 2020). That case involved a use of property alleged to have been started before the city adopted a zoning code, and claims of vested rights, “grandfathering,” and related.

We won’t recount the entire fact pattern here (we suggest reviewing the entire opinion yourself; it is a decent read), and only note that it covers a range of land use and takings topics, including the aforementioned nonconforming use arguments, exhaustion of admin remedies, and the like. In all…

Continue Reading Your Land Use/Takings Exam Hypo: Tex App Considers Nonconforming Uses, Vested Rights, Zoning, Admin Appeals, And Takings

John Pinder was a bad dude. He “was convicted on eleven felony counts in connection with the murders” of two people. State v. Pinder, 114 P.3d 551 (Utah 2005). His mom and dad were not accused, but their property was seized by the state as part of its investigation of their son, and although some of it was used as evidence against him, some of it wasn’t. 

But either way, that property was never returned:

Over the years, government officials gave several reasons for not returning the property. For example, they said that: (1) they needed the seized property for John Pinder‘s ―ongoing criminal case‖; (2) the seized property belonged to John—not to Robert and Virginia; (3) prosecutors needed the seized property in case ―additional charges [were] brought against John Pinder, based upon investigations . . . on cold cases; and (4) prosecutors needed it in case John Pinder…

Continue Reading Utah Clarifies When A Taking Claim Accrues

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In case you missed any part of it: the recordings of the recent 2020 Brigham-Kanner Property Rights Conference are now available.

Go here for the descriptions of the panels, speakers, and links to the recorded sessions.

This year’s conference, held on October 1-2, opened with the Brigham-Kanner Property Rights Prize being awarded to Professor Henry E. Smith of Harvard Law School. The prize is named in honor of the lifetime contributions of Toby Prince Brigham, founding partner of Brigham Moore, LLP, and Gideon Kanner, professor of law emeritus at Loyola Law School in Los Angeles, and is presented annually to a scholar, practitioner or jurist whose work affirms the fundamental importance of property rights.

Topics covered: “Where Theory Meets Practice: A Tribute to Henry E. Smith,” “The Housing Crisis,” “Emerging Issues in Takings and Eminent Domain Law,” “The Reach of Government’s Confiscatory Powers over Exigencies and Emergencies,” and “The…

Continue Reading Brigham-Kanner Property Rights Conference Videos Now Available

After Knick knocked out the “state procedures” requirement of the Williamson County ripeness doctrine, we predicted that owners’ lawyers better dust off their Federal Courts treatises that have been sitting on our bookshelves for the last three decades.

We said that because we suspected the game was still afoot, and Knick alone would not overcome that old trope of federal judges: “we are the big leagues and not super zoning boards of appealssuper monkey selfie determiners, but heaven forbid they address so “local” a topic as property. That is why it seems that the federal courts go out of their way to dodge takings and property questions.

Thus, abstention in its many forms is becoming the new Williamson County. If that doesn’t ring your bell, remember that under Pullman, a federal court will hold off on exercising its jurisdiction because the resolution of unsettled questions of state law…

Continue Reading Abstention, Pullman And Otherwise: The New Williamson County

Admire the enviable record of success of Pacific Legal Foundation (you know, the folks who brought us Nollan, Palazzolo, Sackett, Knick, and a bunch of other great cases)? Always dreamed about joining them?

Well, here’s your chance, experienced property rights lawyers: PLF is looking for a “swashbuckler” (their word, not ours) with 7+ years of experience to “find and win cutting edge property rights cases across the country,” be a “national spokesperson for property rights” and  speak at conferences, engage the media, and publish scholarship on property rights. Become a “leader who will elevate PLF’s junior attorneys to be the best property rights litigators in the nation.”

You would either work in one of PLF’s regional offices (California, Virginia, Washington, or Florida, or virtually from your home.

If that sounds like you, check out the full description here, and we’ll see you on the Supreme Court docket!Continue Reading Takings And Property Rights Mavens: Here’s Your Dream Job