Eminent Domain | Condemnation

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Here’s what we’re reading today. Some related to the lockdown, some not:

Continue Reading Linky Friday: What We’re Reading Today

This morning, the Supreme Court of Virginia heard oral arguments (by telephone) in a case we’ve been following.

This is an inverse case that asks whether less than a total loss of access to a parcel could be taking — did the owner plead enough to put the issue to a jury — and is the government’s mere invocation of a “police power” rationale to cut off access is enough to insulate it from the payment of compensation.

When Hooked proposed to develop its property, the City of Chesapeake closed Callison Drive, the street adjacent to Hooked’s property after the neighbors complained. This cut off Hooked’s direct access to Callison Drive, even though it still had access from and to its property from a second street.

The trial court dismissed (demurred) Hooked’s inverse condemnation claim, concluding that the City was exercising its police power when it closed the street…

Continue Reading Supreme Court Of Virginia Oral Arguments In Important Inverse Case: Must An Owner Allege Loss Of All Access To Plead A Taking?

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To all who joined from Hawaii and across the nation, thank you for doing so. As I mentioned during the webinar, here is the video and links to the cases and other materials I spoke about: 

  • “Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon the power granted or reserved.”  Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934).  
  • The King v. Tong Lee: Hawaii Supreme Court upholds restrictions on commercial laundries in Honolulu’s Chinatown deferring to the government’s assertion that doing so was necessary to preserve the public health. 
  • United States v. Pac. R.R., 120 U.S. 227 (1887): during the Civil War, the Union Army blew up railroad bridges “to prevent the advance of the enemy.” No compensation because the destruction of the bridges was a “military necessity.” “The destruction or injury of

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Continue Reading Video, Materials And Links From Today’s Webinar, “Safety vs. Freedom: Are There Limits to Lockdowns?”

Here’s a short one from the Florida District Court of Appeal where the background might be more relevant to today’s circumstances than the court’s actual holding about which party bears the burden of proof on valuation (and goes first at trial). 

First, the decision. In Florida Dep’t of Agriculture v. Mahon, No. 5D19-3102 (Apr. 9, 2020), the court held that in during the valuation phase (which comes after the trial judge determined there was a taking), the government bears the burden of proof and makes its presentation to the jury first. The court rejected the Department’s argument that, hey, in an inverse condemnation case the property owner is the plaintiff, and the usual rule in every other civil case is that plaintiffs go first. Making us go first here would deprive the Department of due process!   

Not so, held the court of appeal, government goes first in an…

Continue Reading Fla App: In Valuation Phase Of Inverse Case, Condemnor Has Burden Of Proof

Join us next Tuesday, April 14, 2020, at 12 noon Hawaii Time (3pm PDT, 6pm EDT) for a free webinar sponsored by the Grassroot Institute of Hawaii, “Safety vs. Freedom: Are There Limits to Lockdowns?” Register here. 

Here’s the description of the program:

Governments at every level in Hawaii have responded to the coronavirus pandemic by implementing lockdown measures never before seen in the United States during peacetime. We have been forced to give up many of our freedoms, but by what authority can our governor and mayors shutter our businesses, declare vast swaths of our communities “non-essential” and make us stay home? Are there any legal limits to these shutdowns?

Joining us for a free webinar at noon, Tuesday, April 14, to help answer these questions will be Grassroot Scholar Robert Thomas, a widely published attorney who is a director with the law firm…

Continue Reading Safety Dance: Are There Limits To Lockdowns? Free Webinar April 14

Here’s another complaint (here’s the first) challenging a state’s business shut-down order as a taking. This time it is Colorado, and the complaint seeks an injunction and compensation.

Here are the highlights:

  • “As a result of the [shutdown] Orders listed above that restrict the gathering of more than ten people at a time, the plaintiff’s parish has ceased conducting weekly Mass, has ceased offering the Eucharist, and has ceased hearing confessions. The defendants’ conduct has impaired the plaintiff’s ability to freely exercise his religious faith, in violation of the Fifth Amendment.” 
  • “The plaintiff is a cook at a local restaurant.” The restaurant is now closed. “Because the defendants’ Orders have limited the use of the plaintiff’s place of work for the owner of the premises, such a limitation constitutes an exercise of eminent domain over those premises.” 
  • “An increase of less than 1% in our death rate is

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Continue Reading Another Complaint Challenging Emergency Shut-Down Orders As Takings

Here’s the latest in a case we’ve been following. We even visited the site with our class last year. 

Today, the Virginia Supreme Court heard argument on the petition for appeal (streaming above from the webstream, or download the mp3 here) in what we call the oyster case because it involves the property rights of Nansemond River oystermen, whose oyster beds were polluted by sewage from the City of Suffolk.

Bottom line from today’s argument: no decision yet. These arguments are short (10 minutes), only the petitioner is allowed to argue, and today’s argument did not elicit any questions from the three-Justice panel. So we wait. 

Some background, since this is a case at the intersection of property and takings law, and environmental protection. The oystermen own a lease from the state for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia…

Continue Reading SCOVA Oral Argument: Does A City Have The Right To Pollute Chesapeake Bay?

Well, here it is. What looks like the first complaint to be filed challenging a state governor’s order to shut down businesses to “flatten the curve.” 

The complaint seeks class action status, and raises section 1983, due process, and Fifth and Fourteenth Amendment takings claims. It seeks damages, compensation, a declaratory judgment, and, interestingly, an injunction prohibiting enforcement of the shut down order “unless, and until, a mechanism is established to provide (a) just compensation for affected businesses and (b) appellate review of Governor Wolf’s classifications determining whether individual businesses are ‘life sustaining.'” Complaint at 39.

We’ve written about this issue recently here:

More, from law.com…

Continue Reading First Takings Lawsuit Challenging Business Shut-Down Order

The materials we were reading yesterday (particularly Steve Silva’s “History: Fire and Blood(worth),” got us to thinking. There, Steve wrote about the  September 2, 1666 London fire which destroyed 80% of the city, the government’s emergency powers, and compensation. He also brought up a subject we had not know of before: the subsequent legislation — the Fire of London Disputes Act  1666 (18 & 19 C. II. c.7)* — which created the “Fire Court.”

That court — comprised of learned judges from existing courts (K.B., Common Pleas, and Exchequer) — was created to resolve “Differences touching Houses burned or demolished by reason of the late Fire which happened in London” between landlords and tenants. The court began its seating on January 1, 1668. The legislation charged the court with resolving disputes about the required rebuilding, property boundaries, the “Rents as if the same had not been burned,” and…

Continue Reading Time For A “Coronavirus Disputes Court?”

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It’s tough with all that’s swirling around all of us to keep focused on non-virus related things. But because we think that’s one way to keep calm and carry on, we shall continue to endeavor to do so. But come on, being takings and dirt lawyers we also can’t help viewing current events through that lens, no? Consequently, we shall also continue from time-to-time to post about issues that have cropped up in practice that are related to the thing that is on everyone’s mind these days.

In that vein, here’s the latest on-topic things we’ve been reading: 

  • History: Fire and Blood(worth) – Steve Silva, Taking Nevada blog (“Many argue, with great merit, that when a person’s property is sacrificed to preserve the public health, that the person is entitled to compensation. But the law has not yet reached that conclusion, … [and] there is no legal mandate

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Continue Reading Latest Readings: On Emergency Takings, Compensation For Commandeered Property