Eminent Domain | Condemnation

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Here’s the latest “Map Act” case from North Carolina, one that touches a bit on the metaphysical side because it gets into the question of whether an ongoing inverse condemnation case in which the N.C. Supreme Court has already ruled that property was taken (although it did not determine the interest taken), prevents the government from instituting a direct condemnation lawsuit to short-circuit the case.

In Dep’t of Transportation v. Stimpson, No. COA17-596 (Mar. 20, 2018), the N.C. Court of Appeals held that the DOT could not institute an eminent domain action to take land that it had already been deemed to have taken — or be taking — in an inverse condemnation action.

The facts of the case are pretty straightforward. North Carolina’s Map Act (as we detailed here) allows the DOT to designate land for future highway acquisition and prohibits development in the interim. The N.C.

Continue Reading DOT Can’t Condemn Land It Has Already Deemed To Be Taking In Inverse Case

For those of you who have not recently attended the ALI-CLE Eminent Domain and Land Valuation Litigation Conference (which we held recently in Charleston, and which we’re planning for in Palm Springs in Jnauary 2019), here’s another sampling of the kind of thing we do.

It’s our New Jersey colleague Anthony Della Pelle talking about the issues in “Orange Barrel Litigation: Temporary Takings Caused by Construction,” in the session he shared with Professor Matthew Holt.

A very informative session, and these clips only give a small taste. More here, from ALI-CLE, including links to the on-demand video sessions we recorded in Charleston.  

It isn’t too early to mark your calendars for Palm Springs, January 24-26, 2019. Stay tuned here for further details as they become available.

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Continue Reading Tony Della Pelle On “Orange Barrel Litigation: Temporary Takings Caused By Construction”

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Here’s the printable brochure with the details on the 32nd Annual Land Use Institute in Detroit, April 19-20, 2018. We’ve plugged the program before so we won’t do so again, except to say that you really should attend because (1) it’s a very good program that won’t take much of your time (fly in for the Thursday afternoon program, stay a night, fly home on Friday evening); (2) Detroit is the place to be these days; and (3) it’s one of the best deals in CLE credits, with tuition as low as $400.

2018 Land Use Institute Brochure Detroit 5 2018

Continue Reading April 19-20, 2018: Land Use Institute, Detroit (Printable Brochure)

In North Carolina Dep’t of Transportation v. Mission Battleground Park, No. 361PA16 (Mar. 2, 2018), the North Carolina Supreme Court confirmed that real estate brokers — and not only appraisers — can testify about the fair market value of condemned property. 

The background is fairly routine — the DOT condemned a portion of a tract of land for a highway project, made a $276,000 deposit which the landowner considered insufficient, and they went to trial. The owners asked a licensed real estate broker to testify about fair market value. He prepared a report which relied on the before-and-after method, and concluded that just compensation was $3.734 million.

The DOT sought to preclude him from testifying, arguing that brokers are limited by statute to preparing a report on probable selling price, and therefore could not testify as an expert regarding fair market value. The trial court agreed. The owners offered…

Continue Reading NC: Real Estate Broker Is Qualified To Testify About Fair Market Value

Here’s the latest case on our (second) favorite subject, recovery of attorneys’ fees.

First, let’s be frank: in our experience, many courts don’t really care all that much for requests for fees and costs, for whatever reason. Maybe it’s because the merits have already been decided and these requests are collateral “tails.” Maybe it’s because they don’t think that the applying parties deserve to be reimbursed. Maybe it’s because many judges do not come from a private practice background and therefore are not fully appreciative of the cost of private representation. Maybe it’s because the evidentiary details required to support these requests can be … unexciting. Who can say.

And, as we’ve mentioned previously here, assembling a request for attorneys fees can be a slog. Does anyone really like going through their time entries and bills, redacting stuff, tracking down costs, gathering testimony that fees are “reasonable,” and the like?

Continue Reading Nebraska: Eminent Domain Fee Statute Only Requires Reimbursement Of Fees “Actually Incurred” (So Unsupported Claim Is Right Out)

For those of you who have not recently attended the ALI-CLE Eminent Domain and Land Valuation Litigation Conference (just wrapped in Charleston, planning Palm Springs 2019), here’s a small sampling of the kind of thing we do.

It’s U. Virginia lawprof Molly Brady talking about the U.S. Supreme Court’s regulatory takings decision in Murr v. Wisconsin, in the session she shared with John Groen (the Murrs’ Supreme Court counsel). A really informative session, and these clips only give a small taste. More here, from ALI-CLE, including links to the on-demand video sessions we recorded in Charleston.  

And it’s not too early to mark your calendars for Palm Springs, January 24-26, 2019. Stay tuned here for further details as they become available. 

Continue Reading Professor Molly Brady On Murr – Video Clips From The ALI-CLE Eminent Domain Conference

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In Bayberry Cove Children’s Land Trust v. Town of Steuben, No. Was-17-258 (Feb. 27, 2018), the Maine Supreme Judicial Court considered whether the Town’s exercise of eminent domain to take an interest to a road the public had apparently been using for decades (if not centuries) was for public use.

A 2013 survey, however, concluded that a part of the road “strayed outside the the bounds of the right of way as laid out by the Town in 1825, 1887 and 1944.” Slip op. at 3. The Trust, which owned the land on which that portion of the road was located, filed a quiet title action. In response, the voters of the Town, in a Town meeting (how very New England of them), rejected the Trust’s offer to pay the Town $150,000 in return for “discontinuing the road” (we presume that means discontinuing the public use of the…

Continue Reading Maine: Condemnation To Wipe Out Quiet Title Action Is A Taking For Public Use

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Mark your calendars, plan to come: Detroit, April 19-20, 2018. For what is perhaps the best deal in CLE (tuition as low as $400), the 32d Annual Land Use Institute, sponsored by our section of the ABA, the Section of State and Local Government Law.

The venue is the Detroit Mercy School of Law, and the conference hotel is the historic Westin Book Cadillac in downtown Detroit. The Land Use Institute is being held in conjunction with the Section’s Spring State and Local Law Conference. Register for one conference, and you are free to move between sessions (no additional registration fees).

Planning Chairs Frank Schnidman and Dean Patrica Salkin have assembled an excellent faculty and program for the two days. Topics include: “Nuts and Bolts of Land Use Practice: Vested Rights and Regulatory Takings,” “Public-Private Partnerships,” “Climate Change and Resilient Development,” “Client…

Continue Reading 32nd Annual Land Use Institute: Detroit, April 19-20, 2018

At the recent ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Charleston, South Carolina, we held an after-hours preview of the upcoming feature film about the Kelo case, “Little Pink House.” (Based on Jeff Benedict’s book, which we reviewed here.)

The filmmakers graciously allowed us to preview it at the Conference, and we screened selected clips from the film (along with a few others from other eminent domain movies for comparison), and asked one of the lawyers depicted in the film (the Institute for Justice’s Dana Berliner) to comment: reality? Fiction? Somewhere in between? We’ll post a full review of the film soon, and let you know. 

Well, your chance to decide for yourself is coming soon. The producers have announced that the film has a release date, April 20, 2018. As the Hollywood Reporter noted:

The movie will be released in theaters…

Continue Reading Coming Soon To A Theater Near You: “Little Pink House”

Here’s the latest in a case we’ve been following out of Louisiana, involving a local Port’s power to seize a Mississippi River docking facility downriver from New Orleans. The Port took the entire VDP facility, made no change in how the property was used, and eventually turned over operation of the facility to a “hand-picked” private operator. 

In St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., No. 2017-C-0434 (Jan. 30, 2017), the Louisiana Supreme Court upheld the taking of VDP’s property by the Port so that the Port could run it itself. The owner challenged the power to take, as well as the compensation awarded. The Supreme Court held that the Port has the power to take the docking facility so that the Port could operate the facility, but on the issue of just compensation, the court agreed with the owner that it…

Continue Reading Rehearing Sought In Major Public Use Case From Louisiana