April 2024

Here’s one about Lucas “background principles” of property law, or maybe the Supreme Court’s current focus on “history and tradition” when it comes to defining private property for purposes of the Takings Clause. 

In So. Cal. Edison Co. v. Orange County Transp. Auth., No. 22-55498 (Mar. 13, 2024), the U.S. Court of Appeals for the Ninth Circuit affirmed a grant of summary judgment denying a takings claim by a public utility which sought compensation after the County ordered it to move its equipment off of a public right-of-way for a streetcar line at its own expense.

The utility raised a physical takings claim, but the court didn’t get to that issue, instead focusing on whether it owned property. The court noted that state law “generally” defines property but, citing Tyler, held that there are certain “traditional property law principles” and “historical practices” about…

Continue Reading CA9: “Traditional common law rule” That Utilities Bear The Cost Of Relocating From Public Right-of-Way Isn’t A Taking

Here’s what we’re reading today:

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Continue Reading Thursday Round Up: Pretextual Takings, Squatting, Unconstitutional Conditions

There’s a lot going on in the U.S. Court of Appeals for the First Circuit’s opinion in Ocean State Tactical, LLC v. Rhode Island, No. 23-1072 (Mar. 7, 2024), involving a challenge to a Rhode Island statute outlawing possession of certain large capacity gun magazines.

But unsurprisingly, we’re going to be most interested in how the court disposed of the takings challenge.

In 2022 Rhode Island added detachable “large capacity magazines” (those capable of holding more than 10 rounds of ammunition) to its existing list of can’t-own-or-possess items. If you already owned or possessed one of these things, the law gave you four options: (1) modify the mag so it will hold 10 or less rounds; (2) sell the items to a federally-licensed firearms dealer or someone out of state; (3) give ’em to an out-of-stater (Connecticut gun aficionados, you are in luck!); (4) give ’em to Five-O. There’s…

Continue Reading CA1: No Taking When State Banned Possession Of Big Scary Gun Magazines

Under many (most?) state eminent domain schemes, if a property owner withdraws the condemnor’s deposit prior to the judgment of condemnation, the owner waives — or, more technically, forfeits — the ability to challenge public use and necessity. 

Vermont is no different, and under its statute, waiver is triggered by the owner’s “acceptance and use” of a payment:

Except in the case of agreed compensation, an owner’s acceptance and use of a payment under this section does not affect his or her right to contest or appeal damages under sections 511-513 of this chapter but shall bar the owner’s right to contest necessity and public purpose.

19 Vt. Stat. Ann. § 506(c).

The Vermont Agency of Transportation was doing one of those interstate interchange reconstruction projects, and needed some nearby property. After some procedural wrangling about which property owners need to be included in the case, it sent the…

Continue Reading Vermont: It Doesn’t Matter If Property Owner Realizes That Cashing A Check For Estimated Compensation Waives Public Use Challenge

The New York Supreme Court Appellate Division’s opinion in HBC Victor LLC v. Town of Victor, No. 23-01347 (Mar. 22, 2024) marks the second time the issue of whether the Town can seize HBC’s property by eminent domain.

The first time out the court shot down the taking, concluding that it lacked a valid public use because the Town did not have a present plan for the property and the resolution of taking did not specify the present purpose other than “redevelopment.” And that isn’t enough.

As you know, that doesn’t mean the end of the line when it comes to eminent domain. As we often used to counsel clients when we did this stuff, beating back a taking on public use grounds just educates the condemnor about the shortcomings. Unlike other civil litigation, there’s no res judicata (sorry kids, that’s what we still call it) in eminent domain…

Continue Reading NY App Div: Yes, We Previously Said This Taking Wasn’t For A Public Use, But Now The Condemnor Has A Plan