Eminent Domain | Condemnation

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Here’s the opinion of the Connecticut Supreme Court in a case we’ve been following, Barton v. City of Norwalk, No. SC 19671 (July 4, 2017). 

As we noted in our earlier post where we detailed the facts, the case involved two non-contiguous parcels, one of which was used for a parking lot which the City later condemned to build a police station. The parking lot had provided parking for the commercial building on the other parcel (the City had required the owner to build the lot, after the City curtailed street parking). In the eminent domain case taking the parking lot, the owner claimed damage to the commercial operation and lot, but the court prohibited evidence of that damage.

So the owner instituted a separate inverse condemnation claim, seeking recovery for damage to the commercial operation and lot caused by the loss of parking across the…

Continue Reading The Connecticut Supreme Court “Gets” The Larger Parcel Issue: It’s About Joint Use Of The Two Parcels

If you are within striking distance of Madison next month, consider attending the “Property Rights and Land Use in Wisconsin” symposium at the U. Wisconsin Law School. 

This is a one-day conference, and as you might expect, one of the big focuses of the day will be the U.S. Supreme Court’s decision in Murr v. Wisconsin. The speakers will also cover legislative developments, as well as the Wisconsin Supreme Court’s decision in McKee v. Fitchburg (which reminds us to get this opinion out of our queue and onto the blog, which we will do shortly). 

Register here (a very modest $100 for the entire day). 

Brochure, U. Wisconsin’s “Property Rights and Land Use in Wisconsin” Symposium (July 20, 2017) 

Continue Reading U. Wisconsin Property Rights & Land Use Symposium (July 20, 2017)

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So how does a property lawyer salve the wounds of the last few days, which saw a really bad Supreme Court ruling in a regulatory takings case, and shortly thereafter the justices deny review of your just compensation petition while you just happen to be in Los Angeles, California?

Langer’s Deli, that’s how. 

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First, some background.

Many years ago, when my mother was still alive, she resided in Honolulu at an assisted living place. Very nice it was, and it allowed her to remain independent much longer than she might otherwise have been able to alone, and in my estimation probably added 10 years to her life. One of her fellow apartment owners was Robert Corn, a lawyer who had retired from his long career as a senior deputy District Attorney in (and for) the County of Los Angeles.

When he learned I too was a lawyer, we’d…

Continue Reading The Larger Parcel, Eminent Domain, And The World’s Best Pastrami Sandwich

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Here’s the Honolulu Star-Advertiser latest story on the Honolulu rail authority’s condemnation of the property of Blood Bank of Hawaii, “Blood bank sues over city push to take land for rail.” 

The state’s lone blood supplier is pushing back in court against the city’s efforts to acquire the land fronting its Dillingham Boulevard offices for rail.

In a countersuit filed Thursday, the Blood Bank of Hawaii accuses the Honolulu Authority for Rapid Transportation of acting “in bad faith” and “recklessly subjecting Hawaii’s blood supply to grave but unnecessary risks.”

It further questions the benefit of taking the parcel when the city still lacks the funds to build the full 20-mile line to Ala Moana Center.

Full details here, in our Answer and Counterclaim. 

Blood Bank Counterclaim by Honolulu Star-Advertiser on Scribd

Continue Reading Not Satisfied With Merely Taking Land For Rail, Now The City Wants Blood

What to make the Justice Kennedy-authored 5 justice majority opinion in Murr v. Wisconsin, No. 15-214 (June 23, 2017)? 

There, the majority adopted — maybe “created from whole cloth” would be a more accurate description — a multifactor test for determining the “larger parcel’ or “denominator” in regulatory takings cases where the owner possesses more than a single parcel of land.  We quoted the opinion’s list in this post, and won’t repeat it entirely here, but below is a short list of things that now must be considered by lower court judges (not juries) when they are deciding how much of the property the plaintiff owns can be used to measure the impact of the regulation on the parcel which she claims was taken:

  • The “treatment of land.” Yes, the actual metes-and-bounds of the legal parcel, but also, get this, the “expectations … an acquirer of land must

…
Continue Reading Justice Kennedy’s Social Justice Warrior Test For Takings Clause “Property” In Murr v. Wisconsin

We obviously wish we had better news, but today, the U.S. Supreme Court in this order declined to review the Mississippi Supreme Court’s decision in a just compensation case in which we represented the petitioner. 

Justice Gorsuch, joined by Justice Thomas filed this brief statement:

When a State negotiates an easement limited to one purpose but later uses the land for an entirely different purpose, can the State limit, by operation of statute, the compensation it must pay for that new taking? The Mississippi Supreme Court held that it may do just that. But this decision seems difficult to square with the teachings of this Court’s cases holding that legislatures generally cannot limit the compensation due under the Takings Clause of the Constitution. See Monongahela Navi. Co. v. United States, 148 U. S. 312, 327 (1893). Tension appears to exist, too, between the decision here and decisions of…

Continue Reading “Important” Issue And A Lower Court Split, But Cert Denied In Just Comp Case

SCOTUSblog takes note of our cert petition in Bay Point Properties, Inc. v. Mississippi Transportation Commission, No. 16-1077 (cert. petition filed Mar. 3, 2017), a case which seeks U.S. Supreme Court review of a decision by the Mississippi Supreme Court. We represent the Petitioner.

In the “Petitions to Watch” segment, Aurora Barnes writes:

In its conference of June 22, 2017, the court will consider petitions involving issues such as whether the just-compensation clause prohibits a legislature from limiting how just compensation for a taking is calculated and whether the just-compensation clause allows the jury to value the fee interest taken as if it were still encumbered by a discontinued highway easement; and whether the anti-retaliation provision for “whistleblowers” in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 extends to individuals who have not reported alleged misconduct to the Securities and Exchange Commission and…

Continue Reading SCOTUSblog Notes Bay Point Just Comp Case As “Petition To Watch”

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No sleeping under the bridges of Paris!

In Ada County Highway District v. Brooke View, No. 43452 (May 23, 2017), the Idaho Supreme Court held that construction damage caused by the Highway District to property adjacent to — but not part of — a road project for which it took property, was not covered in the condemnation case as damage caused “by reason of … the construction of the improvement.” During construction of the highway widening project, the county damaged a wall belonging to the condemnee. 

The court held that this type of damage was not part of the valuation case in eminent domain, but was covered by tort law. Thus, the property owner could not claim that the cost to repair the damage was part of just compensation and damage, but had to sue the county in a negligence action. The Idaho statute on which the property owner…

Continue Reading Idaho: You Aren’t Special, Just Because You Had Your Property Taken

Here’s the audio recording of the talk we gave to the ABA Section of State and Local Government Law’s Land Use Committee earlier today. (Some of you may note that in the intro we say the talk was on “June 17,” but since that’s tomorrow, we assume you understand that is just an error.)

The links to the cases and materials we mentioned in the talk are posted here. Continue Reading Recording – “Takings: Emerging Issues” ABA State & Local Government Law Section Talk

A quick one from the Virginia Supreme Court, on pleading inverse condemnation in flooding cases. Or in any inverse case, actually.

In AGCS Marine Insurance Co. v. Arlington County, No. 1160221 (June 15, 2017), the court held that the insurance company (which paid off the property owner after a county sewer line flooded its store, and exercised its subrogation rights by bringing an inverse claim against the county) initially didn’t plead the claim adequately. But its proposed amended complaint fixed the pleading defects and made out a valid claim.

The case started when a county sewer line backed up, which caused raw sewage to flow into a neighboring grocery store. The insurance company paid the policy limits, and brought suit against the county. Here’s how the plaintiff initially pleaded the inverse claim:

The original complaint stated that the sewer line and the sewage treatment plant for the sewer line “were…

Continue Reading Virginia SCT Clarifies How To Plead A Flooding Inverse Condemnation Claim