January 2023

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We continue our series on the 100th anniversary of the mother lode of takings case, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (Dec. 11, 1922), with this short essay recently published in the “Notice & Comment” feature of the Yale Journal on Regulation.

In “A Landmark Centennial From a Land Marked By the Past,” our law firm colleague Sam Spiegelman tells us why the Mahon case – despite some weathering over the past century – still is important:

For property-rights advocates, Pennsylvania Coal has become both a blessing and a curse. Though it subjects governmental abuses and overregulation to constitutional scrutiny, in practice it has proven too easy to manipulate in favor of government overreach. Why is this? Because Holmes’s “too far” formula focused on the extent of the of harm to the aggrieved individual. But without his saying more, the Supreme Court ran in…

Continue Reading Mahon At 100: “A Landmark Centennial From a Land Marked By the Past” (Sam Spiegelman, Yale J. Reg.)

Neither snow nor …

Details, including registration here. Or download the print brochure.

In the recent past, we’ve sold out, so don’t miss out. We recently opened up a new room block, so there’s still time.

Come, join your colleagues for 3+ days of the best eminent domain and related programming. And, of course, all the fun Austin has to offer.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-… b

Continue Reading From The Mahon Property: Your Invitiation To The 40th ALI-CLE Eminent Domain Conference, Austin (Feb 1-4)

Unsurprisingly there isn’t a lot there in the majority opinion in Bowers Dev. LLC v. Oneida Cnty. Indus, Dev. Agency, No. 2022-00744 (Dec. 23, 2022) (this is from the New York courts after all, which don’t seem to write long opinions), but we’re posting it so you can compare the majority with the dissent.

Majority: agency’s power to take is limited by the terms of the delegation of eminent domain power (for “commercial” facilities), and here, eminent domain is being used to take property for a parking lot for a hospital. That isn’t a “commercial” use. Slip op. at 2 (“While OCIDA’s determination and findings indicate that the subject property was to be acquired for use as a surface parking lot, the record establishes that, contrary to respondents’ assertion, the primary purpose of the acquisition was not a commercial purpose. Rather, the property was to be acquired because it …

Continue Reading NY Appellate Division: A Hospital Parking Lot Isn’t An Authorized Reason To Take

Here’s one that’s holding over from 2022, but we wanted to make sure to post because it’s a good reminder that when you settle a case, you settle the case.

Wyoming is one of those jurisdictions that has one of those “I want it back” provisions, where if property is not actually used for X years after it is acquired by the government, the owner may ask for it to be returned. In Wyoming, the term is 10 years:

If a public entity acquires property in fee simple title under this chapter but fails to make substantial use of the property for a period of ten (10) years, there is a presumption that the property is no longer needed for a public purpose and the previous owner or his successor may apply to the court to request that the property be returned to the previous owner or his successor upon…

Continue Reading Wyoming: When You Settle An Eminent Domain Fight By Waiving All Future Claims, You Can’t Take Advantage Of A Reclaim Statute

You know the “amortization” doctrine: when an existing legal use is declared illegal, the government can avoid a takings claim by slowly phasing out the use, supposedly to allow the owner to recoup investment. The doctrine is established in Maryland by Grant v. Mayor and City Council of Baltimore, 129 A.2d 363 (Md. 1957), where the court held that amortization works if the time and uses allowed are reasonable.

Not all jurisdictions take that approach, however. For example, in Pennsylvania Northwest Distributors, Inc. v. Zoning Hearing Bd., 583 A.2d 1372 (Pa. 1991), the Pennsylvania court held “[a] lawful nonconforming use establishes in the property owner a vested property right which cannot be abrogated or destroyed, unless it is a nuisance, it is abandoned, or it is extinguished by eminent domain.”

In In re Mangisteab, No. 2022-93 (Dec. 20, 2022) (unpub.), the Appellate Court of Maryland (fka…

Continue Reading Md App: If You Want To Overturn The Amortization Doctrine, Take It Upstairs

Thanks to a colleague giving us a heads-up, we’re starting 2023 with a neat case.

In Ohio Power Co. v. Burns, No. 2021-1168 (Dec. 29, 2022), the Ohio Supreme Court declined to apply a statutory presumption of necessity to the power company’s efforts to use eminent domain to expand the scope of several existing utility easements to upgrade electric transmission lines. Although the case turned on the interpretation of the term “appropriation” in the Ohio statute, it has some lessons for those of us not in the Buckeye State.

In the absence of three statutory presumptions that a taking is necessary, the general rule in Ohio is that the condemnor bears the burden of proving necessity by a preponderance of the evidence. Here, “[t]he landowners opposed the easements in general, alleging that the appropriations were overly broad and unnecessary, and they challenged the need for several of the easement…

Continue Reading Ohio: Necessity Is Judged By The Property Taken, Not The Overall Project