2023

Green_Eggs_and_Ham
with apologies to Green Eggs and Ham

Our friend and colleague Thor Hearne (True North Law/Federal Takings blog) sent us this and when we asked, kindly consented to us sharing it with you.

Thor writes: “I was trying to explain to my granddaughters, ages six, three and four months what I do and the Trails Act cases where I represent property owners.  So, I wrote a Dr. Seuss summary of the Fifth Amendment and Trails Act takings.”

Check this out:

Dr. Seuss Explains Trail Act Takings

In the land where you and I reside,
Private property’s our joy and pride.
Everyone has a piece, maybe big, maybe small,
A place to hang your hat, a spot for a ball.

When government says, “Hey, we need your space!”
They must pay you, put a smile on your face.
Whether it’s a farm, or a tree, or a…

Continue Reading Green Backs And Land: Dr. Seuss (Thor Hearne) Explains Trails Act Takings

Remember after Knick when we predicted that the Supreme Court’s opening back up the federal courthouse doors wasn’t the end of the procedural gamesmanship, but merely the opening of a new chapter? That it was time to dust off your old Federal Courts hornbook, because things like the Eleventh Amendment, Rooker/Feldman, abstention, and similar, were going to spring up as the way to avoid the merits of takings claims? That’s we’re going to be experiencing Williamson County, Phase 2?

Here’s more proof (as if you needed it).

In EEE Minerals, LLC v. North Dakota, No. 22-2159 (Aug. 30, 2023), the U.S. Court of Appeals for the Eighth Circuit held that a takings claim against the State of North Dakota was barred from being litigated in federal court because the State can’t be sued in federal court – even if the right to just compensation…

Continue Reading CA8: 11th Amendment Trumps The Fifth Amendment – Just Because Just Compensation Is A “Self-Executing” Federal Remedy Doesn’t Mean You Get To Come To *Federal* Court

Check out this press release, reprinted on the Wine Industry Advisor (“Renowned International Winemaker Files Lawsuit Against Napa County over Denial of Water Rights“), noting that “winemaker of some of the world’s most sought-after wines” has sued the County in federal court for a regulatory taking, because it denied well permits after Woodbridge refused to agree to a “strict limit on the water that could be drawn annually from each well, a restriction that does not apply to existing wells[.]”

Want to follow along? Here’s the complaint, and here’s the docket report. Here’s a report on the case from Courthouse News (“Heralded winemaker sues Napa County over water wells“).

We may have to do a “site visit” soon, just to be sure these reports are accurate. Just think if this involved our favorite label, Eminent Domaine!Continue Reading Wine And Takings > Wine And Cheese

Here’s a follow up to the issue resolved by the Supreme Court in Tyler v. Hennepin County. Recall that in that case, the core question was whether state law exclusively defined the “property” which Ms. Tyler claimed – the monies remaining after the foreclosure and sale of her home to satisfy her outstanding property tax obligation. The Supreme Court unanimously held no, that a state’s law of property is “one important source,” but “cannot be the only source” of what constitutes private property for purposes of the U.S. Constitution.

In Freed v. Thomas, No. 21-1248 (Sep. 6, 2023), the U.S. Court of Appeals followed up on that question. The court addressed the measure of just compensation in these home equity takings. To do so, the court focused on what “property” was taken – was it the home, or was it the excess proceeds after foreclosure and sale?

The…

Continue Reading CA6: In Home Equity Theft Taking, Just Compensation Is The Excess The Government Kept, Not The Value Of The Foreclosed Home

Why is it, you ask, that the ALI-CLE Eminent Domain & Land Valuation Litigation Conference (scheduled next February 1-3, 2024, in New Orleans) is an event that seems to be growing in popularity and attendance. In recent years, we have standing room only in the Conference halls, and have sold out the hotel block. After all, this is a pretty niche area of law. So what gives?

When we were in Austin earlier this year, we thought it might be nice to try and answer that question. We asked Conference participants why they come, year-after-year (and in Austin, despite massive travel disruptions). Yes, it is the various venues (Nashville, Austin, Scottsdale, Palm Springs, to name a few recent locations), and yes, it is the excellent and useful programming.

But as we suspected it is more than that. As the above video notes…

Continue Reading ALI-CLE’s Eminent Domain & Land Valuation Litigation Conference (Feb 1-3, 2024, New Orleans): Why Attend? Here’s Why.

Property issues often boil down to neighbor relations. Where is the property line, can I pick fruit from my neighbor’s apple tree from my side? Her dogs take a dump on my lawn. And the like.

Those of you who practice in this area know that retail dirt law can be about the big issues, but often the things that come up at cocktail parties when someone finds out you are a property lawyer are not takings, the latest Supreme Court decision, Lockean theory, or Williamson County ripeness. No, people want to know if they can trim those parts of their darn neighbor’s tree that hang on my side of the fence?

That was just the issue resolved by the Maine Supreme Court in Atkins v. Adams, No. 22-394 (Aug. 29, 203). The court held that “under the common law, property owners have the right to cut any part…

Continue Reading Maine: To Avoid A Judicial Taking, We’re Not Going To Alter Common Law – Property Owner May Remove Parts Of Neighbor’s Encroaching Tree

We’re posting this Complaint, not because it raises any new or novel issue, but because one of the plaintiff/property owners is San Francisco 49ers legend Joe Montana, who is suing San Francisco, alleging that the city’s maintenance of its stormwater/wastewater system (yes, the systems are one and the same) caused sewage to flood their Marina district homes.

Read the story here from SF Gate (“49ers legend Joe Montana sues San Francisco alleging ‘toxic fecal’ matter in home“).

We’re going to dust off the California Supreme Court’s latest ruling on inverse condemnation liability for flooding, since we haven’t looked at the doctrine in-depth in a while.

Complaint for Damages, Declaratory and Injunctive Relief, Armstrong v. City and County of San Francisco, No…

Continue Reading Asserting His Property Right To Exclude “toxic fecal matter,” Joe Montana Sues San Francisco For Inverse Condemnation

Here’s the cert petition, recently filed, which asks the Supreme Court to review the California courts’ decision that the state’s “unclaimed property” statute  — by which the State is able to grab billions of dollars of private property on the theory that the owners abandoned it. The statute requires the State to try and locate the owners, but the petition alleges the procedures do not provide adequate notice to the owners, and that the State doesn’t really try all that hard to tell them.

Here are the Questions Presented:

1. Whether the Controller’s actions under color of the California Unclaimed Property Law, Cal. Civ. Proc. Code §§ 1300, et seq. (“UPL”), violate the Due Process Clause of the Fourteenth Amendment because they deprive owners of their property without affording constitutionally adequate notice.

2. Whether the Controller’s actions under color of the California UPL violate the Takings Clause of the…

Continue Reading New Cert Petition: California’s Escheat Procedures Cheat Due Process (And Take Property To Boot)

Here’s the Order by which the Arizona Supreme Court agreed to review a case we’ve been following.

The main issue is whether the Arizona condominium statute, which allows the condo association upon termination of the condominium regime, to sell individually-owned units is a taking under the Arizona Constitution.

Here are the questions presented:

FURTHER ORDERED: GRANTING IN PART the petition and cross-petitions as to these rephrased questions:

1. Either on its face or as applied in this case, does A.R.S. § 33-1228 authorize the taking of private property for private use in violation of Article 2, § 17 of the Arizona Constitution?

2. If any common elements or units in a condominium are to be sold pursuant to a condominium termination agreement, does A.R.S. § 33-1228 require all the common elements and units to be part of that sale?

3. If a contract incorporates an unconstitutional statute by reference, are…

Continue Reading Arizona Supreme Court To Decide Whether Condo Law Which Permits Association To Force Sale Of A Privately-Owned Unit Is A Taking