Eminent Domain | Condemnation

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In Brinkmann v. Town of Southold, No. 22-2722 (Mar. 13, 2024), the U.S. Court of Appeals for the Second Circuit addressed a longstanding issue left unresolved by the Supreme Court in Kelo v. City of New London, 545 U.S. 469 (2005): is it enough that a condemnor’s professed use qualifies as a public use, or may a property owner nonetheless challenge a taking on the grounds that the real reason for the taking is not a public use?

Yes, the “pretext” issue is back!

The facts of the case are pretty straightforward. The Brinkmanns wanted to build a big box hardware store on a 1.7 acre vacant parcel. The usual objections from area residents and the Town itself appeared (you know the drill): a store like this would result in too much additional traffic (traffic study said no), special permits and impact studies are needed (the owners began…

Continue Reading It’s OK To Do Good Things For Bad Reasons: CA2 On Spite Takings – As Long As Taking Is For A Public Use, The Real Reason Is Irrelevant

Screenshot 2024-02-27 at 16-35-17 Post Feed LinkedIn

Save the date (and time): next Wednesday, March 6, 2024, at 5:00 p.m., Eastern Time, as we rejoin our friends and colleagues Patrick McAllister and Beth Smith, as they co-host the Eminent Domain and Right of Way Club.

We’ll be joining them to try and answer that question, “What is Inverse Condemnation?” As Patrick and Beth note, “[w]e will find out what it is, how it works and when does it happen….and probably a lot more.” Sounds intriguing.

For those of you who may not have participated in one of these sessions before, you may be wondering “what is this ‘Clubhouse’ thing?” Here’s the description, straight from their site:

The Eminent Domain & Right of Way Club is on the Clubhouse Drop in audio app. This Club is geared toward right of way professionals & anyone interested in the acquisition of land rights for infrastructure projects.

In short, it …

Continue Reading “What is Inverse Condemnation?” Join Us In the EDROW Clubhouse, March 6, 5pm, To Find Out (And More)

ALI-CLE brochure cover page

When it comes to the longstanding ALI-CLE American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conferences, we’re always ready to go. You know that. But this year’s version — the 41st — was buzzing like no other in recent memory.

Maybe it was the New Orleans venue with its atmo, food, and music for our after-class activities, or even the timing (the second-to-last week on the Mardi Gras parade season, and our conference hotel was right on the routes). It might have been the nice weather (oh, it rained buckets one evening, but there wasn’t an ice storm like we experienced in Austin in 2023). Or maybe it was the capacity crowd, and new topics and speakers on the agenda. Or maybe it was just the prospect of seeing our friends and colleagues again after a year.

Here’s a photo essay of some of the Conference highlights.

And…

Continue Reading Pass A Good Time: Our Report From The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

NCSCT
The historic Supreme Court of North Carolina.

Here’s the latest in a somewhat strange case we’ve been following about what happens after a court determines that a taking lacks a public use — but the condemnor goes ahead and just seizes the property anyway.

The Town of Apex, North Carolina, sought to take an easement across Rubin’s land. She objected, asserting the taking was not for a public use or purpose, but rather to benefit a private party: a developer who needed the easement to connect two of his non-contiguous parcels to the municipal sewer system, a precondition of the Town’s development approvals for his proposed residential subdivisions.

While Rubin’s public use objection was pending, the Town went ahead at installed the sewer line, purportedly under its quick-take power. That was not the best of moves, however, because the courts eventually agreed with Rubin that the taking violated the public…

Continue Reading The Public Use Requirement Is Self-Executing: “In a free society, we should not expect that when a court tells the government that a taking is illegal and unconstitutional, that it would just go ahead and seize the property anyway.”

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If you dream such dreams as this photo, read on.

My law firm, Pacific Legal Foundation, is on the hunt for lawyer to join our Property Rights group (yours truly is the Director of Property Rights Litigation, so you will be working with me and the other takings and con law mavens in our practice). Here’s the full description of the spot:

You: An entrepreneurial freedom fighter with a passion for property rights litigation. You work with more senior-level attorneys to find and win cutting-edge property rights cases in trial and appellate across the country. You work as a part of a collaborative team, but are also self-motivated and able to work independently with minimal supervision. You are eager to learn, relentless, and a focused lawyer.

Them: Bureaucrats, city councils, mayors, governors, and federal agencies stripping Americans of their rights every day. There’s a lot of government overreach out there…

Continue Reading Dig Property Rights? Join Our Firm As A Courtroom Property Rights Lawyer

A quick one from the South Carolina Supreme Court.

In Applied Building Sciences, Inc. v. South Carolina Dep’t of Commerce, No. 28184 (Jan. 17, 2024), the court held that the $50,000 cap on relocation benefits provided to ABS by South Carolina’s version of the Relocation Act was enough, and did not deprive ABS of just compensation.   

Applied Building Sciences was a tenant in a building taken by the South Carolina Division of Railways, and was listed as an “Other Condemnee” in the eminent domain action. The taking forced it to relocate its business, which triggered its right to seek relocation benefits. South Carolina offers those displaced up to $50,000 in benefits, even if the taking isn’t federally funded (and thus not covered by the federal URA). 

ABS thought the cap was unconstitutional and asked for $560k in expenses, and raised an inverse condemnation claim. The Department said no…

Continue Reading South Carolina’s Relocation Act Benefits Are Not “Just Compensation”

One week ago today, the U.S. Supreme Court heard oral arguments in Devillier v. Texas.

We wrote up our thoughts in this post, “Rogue States: Today’s Argument In Devillier v. Texas – ‘Aren’t the Courts supposed to do something’ About Violations Of The Constitution?,” and now bring you other reports:

  • Niina H. Farah, “Supreme Court leans toward landowners in Texas flooding case” (Politico E&E News) (we were quoted in this piece: “Robert Thomas, director of property rights litigation at the Pacific Legal Foundation, said critiques of Texas appeared to cut across the ideological spectrum on the court. ‘Even those justices who you might not usually think of as viewing property rights favorably, they didn’t seem to appreciate what I would call the gamesmanship [from Texas],’ said Thomas, who wrote a friend of the court brief to the Supreme Court in support of landowners.).
  • Lydia Wheeler,

…
Continue Reading Devillier Oral Argument Round-Up

Don’t miss out!

We promise: this is the last time we’re going to try to entice you to the upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference in New Orleans. We are getting close to capacity, but there is still room. 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 last 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.

Continue Reading No FOMO: There’s Still Room For You To Join Us In New Orleans Feb 1-3, 2024 For The 41st ALI-CLE Eminent Domain & Land Valuation Litigation Conference

We’d guess that most people, if asked whether the courts can “do something” when the government acts beyond the authority delegated to it in the Constitution, would respond that “doing something” is exactly what courts are for. 

Bottom Line Up Front

And that is what drives our BLUF on today’s Supreme Court oral arguments in Devillier v. Texas: we’re predicting that the property owner’s arguments in will convince a majority of the Justices, and that the Court will answer the Question Presented with a “yes” –

May a person whose property is taken without compensation seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action?

Courts Exist to “Do Something” When Government Violates Rights, Right?

Justice Kagan, as if often the case, drove right to the heart of the matter. For the “money quote” in the transcript or…

Continue Reading Rogue States: Today’s Argument In Devillier v. Texas – “Aren’t the Courts supposed to do something” About Violations Of The Constitution?