Here’s our latest article, from the upcoming edition of The Practical Real Estate Lawyer, via ALI-CLE.
Despite its grand title, “A Full and Perfect Equivalent for Just Compensation: The Historical Context and Practice,” its just a short piece that asks whether just compensation is the next big thing, identifies three issues in just compensation in eminent domain that may be on the horizon, and urges the Supreme Court to provide some guidance on this issue.
Remember that case which we posted about earlier, in which the City and County of Honolulu condemned an undeveloped lot in rural Oahu for a fire station, but has been met with staunch resistance by the property owners? Not only did we post on the case, but it made national waves, also.
The City filed an eminent domain action in state court, and obtained a writ of immediate possession. After that, the City removed the eminent domain protest signs the owners had maintained on the property. The owners objected, filing a complaint in U.S. District Court alleging that the City went on the property and posted a “removal notice” under the City’s newly-adopted “Bill 54,” an ordinance allowing the City to seize property “stored” on public property provided it “tags” it 24 hours in advance, and that the removal was retaliation for the signs’ content.
The complaint alleges that the
Here’s an opinion from the California Court of Appeal, issued last month but unpublished, which was recently ordered published by the court. It’s a lengthy (38 pages) and somewhat detailed opinion, but for those of you who do eminent domain, it’s a worthy read because it covers many bases, and covers them well.
First, the bottom line of San Diego Gas & Elec.Co. v. Schmidt, No. D062671 (July 21, 2014, published Aug. 13, 2014). Condemnor’s just compensation deposit: $712,200. The jury’s award: $8,034,000. That’s over an eleven-fold difference. Lowball Watch alert!
The case involved the taking of an easement for power lines, and the issues revolved around the highest and best use of the property (the jury agreed with the owner that mining was the highest and best use, and rejected SDG&E’s claim that residential development or habitat mitigation was the highest and best use), the method of valuation
Continue Reading Cal App: Highest And Best Use Isn’t Limited To Current Uses
After a couple of days detouring to election law, today we’re back to our usual programming.
We caught wind of an upcoming book (September 2014), “Private Property and Public Power: Eminent Domain in Philadelphia,” by Barnard College Professor Deborah Becher. “Her book—the first comprehensive study of a city’s eminent domain acquisitions—explores how and why Philadelphia took properties for private redevelopment between 1992 and 2007.” Sounds intriguing. More information about the book here.
Here’s an interview with Professor Becher about the book and her study, which lists some of her more controversial — and debatable — conclusions. Highlights:
Continue Reading Upcoming Book: Private Property and Public Power – Eminent Domain in Philadelphia
We were all set to write up the New Jersey Supreme Court’s opinion in Borough of Merchantville v. Malik & Son, LLC, No. A-55 (Aug. 7, 2014) when we thought to ourselves “Tony Della Pelle and his crew at NJ Condemnation Law probably have this one covered already.”
Sure enough, they did. See “NJ Supreme Court: Condemnor Has No Duty to Negotiate with Holder of Mortgage,” a writeup of the case by Joseph Grather. The title of that post tells you most of what you need to know about the decision: the court held that the condemnor only must engage in bona fide negotiations with the “title holder of record.” Why? Because the statute says it does, pretty plainly. Which means that it doesn’t have to engage with mortgage holders. Confirming again that old canon of statutory construction, “read the statute, read the statute, read
Continue Reading NJ: Condemnor’s Duty Of Good Faith Only To Title Holder, aka Read The Statute
Last week, we posted our amici brief in Texas v. Clear Channel Outdoor, Inc., a case in which the Texas Supreme Court is considering two questions: first, whether a billboard owner is entitled to just compensation when the land on which it sits is taken by eminent domain, and second, what method of valuation can be used to measure compensation, if so. Here are the rest of the briefs in the case.
Texas needed to widen a freeway, and condemned the land on which the billboards were located. It refused to pay just compensation on the grounds that the billboards were personal property and not “realty,” and thus the owner could simply move them. The State issued a removal order. In response, the owner filed an inverse condemnation action to recover just compensation for the billboard takings.
The court concluded the billboards are not moveable property, but are fixed
Continue Reading Briefs In Texas Supreme Court: Is A Billboard Moveable Property?
Here’s what we’re reading on this blustery Friday:
The Texas Supreme Court has agreed to review Texas v. Clear Channel Outdoor, Inc., a decision in which the Court of Appeals held that the owner of billboards was entitled to compensation when the land on which the billboards were located was condemned.
Texas needed to widen the freeway, and condemned the land on which the billboards were located. It refused to pay just compensation on the grounds that the billboards were personal property and not “realty,” and thus the owner could simply move them. The State issued a removal order. In response, the owner filed an inverse condemnation action to recover just compensation for the billboard takings.
The court concluded the billboards are not moveable property, but are fixed to the ground, and that the state should have condemned and paid for them. It also overruled the state’s objection to the method of determining just compensation, which
Continue Reading Texas Supreme Court To Consider: Are Billboards Movable Property?
Yes, it’s our old favorite, the Australian eminent domain comedy, The Castle (our review herefirst Law Film Festival, and were in good company: Ebert also loved the movie).
The most recent edition of the ABA Journal, features “12 pivotal movie scenes with lessons for lawyers.” The lesson we learn from the “one of the most painfully awkward courtroom scenes put on film,” where inept solicitor Dennis Denuto tries to argue his way around the Australian Constitution’s version of the Takings Clause at a public use hearing:
There are times when lawyers can reach beyond their limited experience, rise to the occasion and snatch victory for the little guy. There are also times when you know yourself to be outmatched. Potential clients may have complete faith in you, but they probably do not understand the law and the challenges they may face. If you know that
Continue Reading ABA Journal Zeros In On Our Favorite Courtroom Scene In A Legal Film
When we eminent domain lawyers deal with claims that the government or some other entity is “stealing” someone’s property, we recognize that such claims are somewhat … metaphorical.
But here’s a situation where it appears that some poor fellow actually had his house, like, stolen. As in hijacked, ripped off, five-finger discounted.
The Daily Mail reports that one Andy Pascali, a resident of the Romanian port city of Braila, called the police to report that his house had been stolen:
At first they thought it was a joke, but when they turned up at the nearby village of Baldovinesti they found not only that there was no property where there should have been a three-bedroom building, but that a field of ready-to-harvest corn had been planted in its place.
A shocked Mr Pascali, who posted the image of the cornfield on his Facebook page, said: ‘I think this could
Continue Reading “My entire house has been stolen” (And No, It Wasn’t By Eminent Domain)
