Eminent Domain | Condemnation

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We sure wish we could have attended the Cato Institute’s recent Constitution Day program in Washington, D.C., but here’s the next best thing, a video of the presentations on Property Rights, with a review of the recent Sackett and PPL Montana decisions by the Supreme Court, and an update about the state of property rights.

Speakers include our PLF colleague Damien Schiff, lawprof Jonathan Adler, and lawprof Ilya Somin.

We can’t embed the video, but you can watch it here on CSPAN’s site. Continue Reading From Cato Institute’s Constitution Day: Property Rights And The Supreme Court (Video)

In Moore v. City of Middletown, No 2012-1363 (Aug. 30, 2012), the Ohio Supreme Court held that a property owner did not have standing to bring a regulatory takings claim when a “foreign municipality” (the neighboring city) rezoned an adjacent parcel, because the municipality did not have jurisdiction to exercise eminent domain over his property. However, the court held the property owner could seek a declaratory judgment “to challenge the constitutionality of the ordinances.”

Under Ohio law, a “regulatory takings” action gives the plaintiff a right to bring a mandamus action to compel a municipality to institute condemnation proceedings, and the court held that since Middletown could not have exercised eminent domain authority outside of its jurisdiction, it could not be compelled to do so by the property owner. Our Ohio colleague Matt Fellerhoff discussed this aspect of Ohio law in his analysis of Clifton v. Blanchester, 964…

Continue Reading Ohio: No Such Thing As Extraterritorial Inverse Condemnation

Here’s a few reports worth reading:

  • Lt Gov. Gavin Newsom alleges ‘threats’ against mortgage plan – the LA Times reports on California’s Lieutenant Governor (who just happens to have “some ties to Mortgage Resolution Partners” — the private investment group that promulgated the idea of using eminent domain to seize underwater mortgages), who is calling for an investigation of whether those objecting to the plan are “threatening” local governments. “Newsom’s complaint comes after several groups, including the influential Securities Industry and Financial Markets Assn., objected to the eminent domain plan and warned that mortgages could become more expensive for future homeowners living in regions that adopt the plan. The Federal Housing Finance

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Continue Reading Thursday’s Worth Reading List

Those of you who attended the recent CLE session at the ABA Annual Meeting about Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012) may recall that Professor John Echeverria, the well-known environmental lawprof, said he was writing a brief in the case supporting the government’s arguments, but was looking for a “client.” Well, it looks like he found one: today, the International Municipal Lawyers Association filed this amicus brief in support of the respondent.

In Arkansas Game, the Federal Circuit held that flooding caused by the Corps of Engineers was only temporary, and did not result in a compensable taking merely because it eventually stopped, and “at most created tort liablity.” The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases, and regularly results in awards of …

Continue Reading IMLA Amicus Brief In SCOTUS Flood Takings Case: This Is Not An “Environmental” Case

August 31, 2012 was a big day in the Texas Supreme Court for takings and condemnation lawyers. The court issued three major opinions in our favorite area of law. The first involves a question of public use, the second inverse condemnation, and the third valuation. Trifecta.

Instead of putting our gloss on the opinions, we’ll just post them and excerpts of the summaries from the Supreme Court of Texas Blog.

  • City of Austin v. Whittingthon, No. 10-0316 – From the Supreme Court of Texas Blog: “This is a potentially major takings case about when government can take property for private (rather than public) benefit. The City of Austin took a parcel of land in downtown that was, in short order, folded into a private development. A jury concluded that this taking was made in bad faith, and the court of appeals agreed. Divided 7-2, the Texas Supreme

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Continue Reading Big Takings Day In The Texas Supreme Court

According to the Washington Post, a Texas county judge has concluded that TransCanada is a common carrier, and therefore may exercise eminent domain to take property for its Keystone XL pipeline.

In an unusual twist (but one which we fully expect to see more of as smartphones become ubiquitous), the court apparently informed the parties of his decision by an email or text from his iPhone:

Dear Counsel,
 
My rulings as follows:
 
Transcanada’s MSJ is GRANTED
Transcanada’s NEMSJ is GRANTED
Crawford’s Plea to the Jurisdiction is DENIED
 
Mr. Freeman would you please forward orders consistent with my ruling for my signature?
 
Sent from my iPhone

At least he didn’t include an LOL or 🙁 to add further insult to the injury. Continue Reading Judge Not BFF To Landowner, Grants MSJ To Condemnor Via iPhone. SRSLY.

Today’s American Banker has a story on the latest development in the let’s-use-eminent-domain-to-take-underwater-mortgages scheme: the Federal Housing Finance Agency has sent a strong shot across the bow of local governments contemplating such a move (e.g., San Bernadino, Chicago, even Berkeley):

Uh, don’t.

Full statement here, or below. The American Banker story is unfortunately behind a paywall, so we can’t bring it to you here, but we do have the highlights from a trio of Owners’ Counsel of America commentators who are quoted, us included:

“San Bernardino County cannot condemn federal property,” said Gideon Kanner, professor of law emeritus at Loyola Law School in Los Angeles and a longtime eminent domain expert. The FHFA is “a federal agency and the Feds can take the property of a state or city but the state or a local entity cannot take federal property.”

Robert Thomas, an attorney at the…

Continue Reading “Hey Look, Free Money!” Fed Agency Has Problems With The Plan To Take Underwater Mortgages

For those of you sticking around Chicago after the ABA Annual Meeting, there’s the opportunity for even more land use, zoning, takings, and condemnation programming. ALI-CLE (fka ALI-ABA) is putting on it’s annual Land Use Institute later this week. It looks like Planning Co-Chairs Gideon Kanner and Frank Schnidman have put together a wide-ranging agenda, and stellar faculty, as usual. 

Details, including registration information, here.Continue Reading Chicago Part II: Land Use Institute

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Here are the cases and links that I discussed at today’s ABA session on eminent domain:

  • Kelo – Remember the holding of the case: the Court majority rejected the petitioners’ call to adopt a blanket rule that all takings supported only by claims of economic development violate the Public Use Clause of the Fifth Amendment. In declining to adopt the rule, the Court left open challenges based on lack of a comprehensive plan, claims that the advanced public use is a pretext to hide a predominant private purpose, and the old “A-to-B” private taking.
  • City of Stockton v. Marina Towers LLC (Cal. Ct. App. 2009) – The case in which the court held that the city’s resolution of necessity was so “nondescript [and] amorphous,” and “so vague, uncertain and sweeping in scope that it failed to specific the ‘public use’ for City sought acquisition of the property.”

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Continue Reading Resources From Today’s ABA Eminent Domain Session