Eminent Domain | Condemnation

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You snooze, you lose.  That’s the lesson from Turnacliff v. Westly, No. 07-15287 (Oct. 15, 2008), where the Ninth Circuit rejected a claim that California’s escheat statute, which sets a rate for interest on abandoned property, violated the Takings Clause.  The owner whose abandoned property was eventually returned (with statutory interest) claimed that the state had a constitutional obligation to use some form of market rate for calculating the interest.

The court assumed the existence of a property right in interest earned on escheated property, but held that because that property itself had been abandoned, the owner had forfeited any property claim in the interest on the property.  The owner got its money back, with interest, and the court held the owner

. . . has no Fifth Amendment right to “actual” or “constructive” interest earned by its property while held by the State; California need not further compensate…

Continue Reading Ninth Circuit: No Taking of Interest on Abandoned (Escheated) Property

You may have been wondering why we’ve been closely following the U.S. Supreme Court arguments in Winter v. Natural Resources Defense Council, Inc.,No. 07-1239, the case about the Navy’s use of mid-frequency active sonar in training exercises off the California coast. Well, besides the fact that we filed an amicus brief in the case on behalf of nine retired Admirals and several service support groups (posted here), the case has the potential for affecting more than marine mammals and the Navy’s use ofsonar, because the Court has been asked by the government and amici toexamine the standards applicable to injunctions in NEPA cases.  

Professor Gideon Kanner has posted two items about the case recently, reminding us why the larger issue — when the courts should defer to the judgment of the other two branches — is important.

The first is “Did Environmental Quibbling Facilitate the Attack on …

Continue Reading The Navy Sonar Case and Kelo

In United States v. 4.85 Acres of Land, No. 07-35310 (Sep. 29, 2008), the US Court of Appeals for the Ninth Circuit held that the trial court should not have refused to admit evidence of sales at properties nearby the property taken, even though the sales occurred after the taking.

The federal government condemned land as a buffer zone for a fish hatchery, taking only a portion of the properties involved.  The landowners subdivided the portions not taken, and began developing these properties.  The subdivided lots were sold after the date of the taking.

The landowners offered evidence of these comparable sales into evidence, but the trial court categorically refused to allow evidence of post-taking sales.  During deliberations, the jury asked whether there had been any sales of the adjoining property, and whether it could consider these sales.  The trial court instructed the jury it could not consider such…

Continue Reading Ninth Circuit: Post-Taking Sales Admissible in Federal Condemnation

Professor Kent Schooland has posted “Eminent Domain and the Eighth Commandment,” a piece with his thoughts about the morality of condemning property and the system of “just compensation.”

Given the realities of eminent domain, perhaps we should prepare our children with relevant civics lessons for the playground. Whena gang of kids wants to grab a pretty ring off the finger of a littlegirl, they can avoid annoying accusations of “theft” by following a fewsimple steps:

1) The gang must use the Latin words eminent domain, never “stealing.”

2) The gang must designate one of their members as leader—thus the “superior owner” of everything on the playground.

3)The gang leader must instruct his or her lieutenants to “tax” a fewcoins from other children on the playground in order to offer “justcompensation” to the girl when her ring is taken.

4)The gang leader must explain that his actions are for…

Continue Reading The Fifth Amendment and the Eighth Commandment

Some interesting items from around the land use law blogosphere:

  • A write up of an Eleventh Circuit (which covers Alabama, Florida, and Georgia) decision striking down as unconstitutional a municipal ordinance that prohibited national chain retail stores because it violates the dormant Commerce Clause.  This could be a very important case on the “big box” and “formula retail” issues. More from Georgia Zoning Blog.
  • Charley Foster has a series of posts about a reporter’s privilege to trespass on private property, and how it may relate to an ongoing controversy about the State of Hawaii Historical Preservation Division and native Hawaiian remains on a construction site on Kauai.  Start at Planet Kauai.

Continue Reading Land Use Law Round-up

When a court labels the Nollan/Dolan line of decisions “so-called exaction cases” (and your claim is that an exaction is not related or proportional) you know right away you are in trouble.

First, the dry summary.  In Action Apartment Ass’n v. City of Santa Monica,No. B201176 (Aug. 28, 2008) (slip opinion available here), the California Court of Appeal (SecondDistrict) denied a facial challenge to the city of Santa Monica’saffordable housing exaction ordinance.  The court relied upon thelegislative/adjudicative distinction holding that Nollan/Dolananalysis is only applicable to individual decisions regarding permitapplications, and cannot be used to challenge legislative decisionsgenerally applicable.

Second, some background on “facial” challenges as contrasted with “as applied” challenges. A “facial” takings challenge to a statute or ordinance asserts thatits mere enactment is unconstitutional.  The U.S.Supreme Court recently explained the nature of facial challenges:

Under United States v. Salerno,481 U. S.

Continue Reading My So-Called Exaction Case: More on Action Apartment

In a story titled “Honolulu notifying landowners in way of planned rail route,” the Honolulu Advertiser reports “The city has started notifying residents living in the path of the planned $3.7 billion elevated commuter rail that all or part of their properties may be condemned.  The letters, which are being sent out in batches, don’t specify how much property may be needed along the 20-mile East Kapolei to Ala Moana route.” 

The proposed rail project, if it survives an initiative vote this November, is shaping up to the biggest public works and largest singular use of eminent domain in Hawaii’s history (I say “singlar,” since the Land Reform Act — the law challenged in Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) — might still be considered the largest use of eminent domain, but it was piecemeal).   I guess our December 2006 prediction of the “dear…

Continue Reading Eminent Domain and the Holy Rail: “Dear Homeowner” Letters in the Mail?