Eminent Domain | Condemnation

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Here’s what we’re reading this Monday:

  • Preview of SCOTUS oral arguments in Murr v. Wisconsin. This is the “larger parcel” case which will be heard next Monday, March 20. The Cato Institute is having a session on it at its DC facility, “Rethinking Regulatory Takings.” If you can’t be there in-person, it will be live streamed. More here. We’ll have our own preview later this week. 
  • Our colleagues at the Massachusetts Land Use Monitor comes this report (“Regulatory Taking, Anyone?“) about a recent jury verdict which concluded that denial of a variance resulted in a loss of all beneficial use of property. And you know what that means, don’t you? 
  • Professor Ilya Somin writes about the “Potential pitfalls of building Trump’s Great Wall of eminent domain” in the Washington Post. 
  • Professor Gerald S. Dickinson adds his thoughts on the Wall:

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Continue Reading Monday Links: Murr SCOTUS Preview, Mass. Reg Takings Verdict, Great Wall Of America, Train Takings

West Virginia Dep’t of  Transportation v. Newton, No. 16-0325 (Mar. 7, 2017) was the second time that case had come before the West Virginia Supreme Court. As we noted here (“DOT Should Not Have Mined Privately Owned Limestone Without Owner’s Permission“), the court held that the the Department of Highways should have instituted eminent domain proceedings before it started removing Ms. Newton’s limestone from her land. After she prevailed in her mandamus action, WVDOH did so. 

As a result of the condemnation action, Newton was awarded nearly $1 million in compensation, and $250k in attorneys’ fees for the mandamus and condemnation actions under the Uniform Relocation Act, which is incorporated into West Virginia law. The URA provides for fee shifting when an owner is forced to initiate a claim for compensation.

WVDOH appealed, arguing that hey, we condemned Newton’s property (after she won her mandamus action), so…

Continue Reading W Va: Relocation Act Attorneys’ Fees Required Where Owner Sues To Compel Condemnation

Can there be a more “Florida” name for a municipality than “Sunny Isles Beach?” Opinion may differ of course, but we think this one may take the prize.

That diversion aside, here’s today’s case. In City of Sunny Isles Beach v. Cavalry Corp., No. 3D15-1420 (Jan. 25, 2017), the Florida District Court of Appeal affirmed an eminent domain judgment and an award of just compensation, concluding that the trial court was within its discretion when it allowed the landowner to present evidence of “conceptual” site plans to establish the property’s highest and best use.

The city took property for a bridge, and “[f]or all the years since the current owner acquired title to the property and before, there has been no effort by an owner to develop the canal property.” Slip op. at 3. But at trial, the owner “contended at trial, based upon conceptual site plans prepared by one of its…

Continue Reading Fla App: Highest And Best Use Doesn’t Require Owner Have More Than “Conceptual Plans”

Here’s the cert petition we filed today in an eminent domain case out of Mississippi. 

Rather than go on about what the case is about, here are the Questions Presented:

An inverse condemnation jury determined the Mississippi Transportation Commission (MTC) ceased using a highway-purpose easement granted to it in 1952 by Petitioner’s predecessor-in-title for a specific bridge, “Toll Project No. 1,” the U.S. Highway 90 crossing of Bay St. Louis. In 2005, Hurricane Katrina destroyed the bridge. MTC removed Toll Project No. 1 and built an entirely new bridge in a different location, and converted the majority of Petitioner’s land into a public recreational park. This discontinued the specific use authorized by the easement, and Petitioner should have immediately recovered unencumbered possession. The jury determined MTC’s new uses were not highway purposes within the 1952 easement, and MTC had taken Petitioner’s property. The court, however, instructed the jury to calculate…

Continue Reading New SCOTUS Just Comp Cert Petition: Can Jury Value Property As If Burdened By Extinguished Easement?

We’ve been meaning to post People ex rel. Dept’ of Transportation v. Presidio Performing Arts Foundation, No. A145278 (Nov. 3, 2016) for a while (as you might be able to tell by the date of the opinion), thinking that one of our left coast colleagues more familiar with the workings of California’s goodwill-in-eminent-domain rules would analyze it and tell us what to think. But so far, we haven’t seen anything from them, so we’ll take a short stab at it.

Caltrans has been fixing up the southern approaches to the Golden Gate Bridge, and anyone who has ever driven that stretch of road knows two things: (1) Doyle Drive was hairy — nicknamed “blood alley” because it required Steve McQueen-level driving skills just to make your way to the Bridge, and (2) it runs through the Presidio of San Francisco, the former Army post, now converted to public…

Continue Reading Cal App: Increasing A Nonprofit’s Losses May Result In A Business Goodwill Claim

Here’s an article, recently published by the Urban Lawyer (the law review produced by our ABA section, the Section of State and Local Government Law), with our take on the most interesting and important eminent domain and takings rulings from the past year. 

Many of the cases discussed will be familiar to regular readers, but here it is in one place, and in print. 

Recent Developments in Eminent Domain, 48 Urb. Lawyer 939 (2016)

Related articles
New Article: “Eminent Domain in The Aftermath of Hurricane Katrina”
New Law Review Article Worth Reading: “Through a Glass Clearly: Predicting the Future in Land Use Takings Law”

Continue Reading New Article: Recent Developments In Eminent Domain

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We’ve spent a good portion of the last two weeks at conferences discussing the regulatory takings case now pending at the U.S. Supreme Court, Murr v. Wisconsin, No. 15-214.

The biggest question most had was why the Court had not scheduled oral arguments. There was a lot of speculation and gossip about the Chief Justice perhaps holding off on OA because the Court was one Justice short. Recall that cert was granted, but shortly thereafter Justice Scalia died, leading to speculation that there was not a clear five-Justice consensus for how to analyze the issues on the eight-Justice Court. But no concrete answers.  

Well, maybe they heard all the chatter over at 1 First Street NE, because on Friday, the Court issued this argument calendar, and lo and behold, look what’s on calendar for Monday, March 20, 2017.

The questions remain unanswered: Will the Court have …

Continue Reading Supreme Court (Finally) Sets Arguments In Reg Takings Denominator Case (Murr v. Wisconsin)

When we previewed the 2017 ALI-CLE Eminent Domain & Land Valuation Litigation Conference while we were getting buried in the snow a couple of weeks ago, we promised there would be better weather in San Diego than much of the country was then experiencing. As you can see, we delivered.

We — and by “we” I mean the faculty, the ALI-CLE staff, and the record number of attendees who came to San Diego — also delivered on a really great conference. See our posts on several of the presentations here, here, here, and here for a flavor.

We also announced that the date and location for the 2018 Conference has been set, and the hotel and site have been booked:

2018 ALI-CLE
Eminent Domain & Land Valuation Litigation Conference
Francis Marion Hotel
Charleston, South Carolina
January 25-27, 2018

Stay tuned for details. Send your ideas for…

Continue Reading 2017 ALI-CLE Eminent Domain Conference Wrap, 2018 Venue Announcement

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Our final day was anchored, as usual, by Pacific Legal Foundation’s Jim Burling, and property rights guru and advocate Michael Berger. Jim was his usual riveting self, and Michael supplied the insight to cases which only he can.

In case you are wondering, the above is the view from the dais, and no, I didn’t bring a Spam calendar with me, it was a gift from a thoughtful New Jersey colleague who knows that Hawaii people love Spam. I will reserve comment on whether I love Spam, and simply say thank you for the calendar. 

We finished the day strong with the National Forum, where audience members took the mic and shared their cases, issues, and results with the rest of us. 

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Continue Reading Links & Materials From Day 3 Of ALI-CLE Eminent Domain And Land Valuation Litigation Conference, San Diego

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Today, in addition to listening to sessions on Ethics, jury presentations, and expert witnesses, we presented (along with Dave Breemer of Pacific Legal Foundation) a session on “Takings and the Police Power.” Here are the links to the cases and articles I discussed in my portion of the presentation: 

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Continue Reading Links & Materials From Day 2 Of ALI-CLE Eminent Domain And Land Valuation Litigation Conference, San Diego