Inverse condemnation

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Today’s commentary is by our colleage Thor Hearne, who regularly represents property owners in the Court of Federal Claims, the Federal Circuit, and the Supreme Court. He recently joined us on the faculty of the ALI-ABA eminent domain program in San Diego, and spoke at the 2011 Brigham-Kanner Property Rights Conference in Beijing. He’s familiar to our readers who have followed his success in “rails to trails” cases in the CFC. Thor reports on the latest developments in those cases below.

Thor recently posted this summary, noting that the U.S. Department of Justice had lost a series of 16 Trails Act cases in a row during the past 12 months, and now updates us with the most recent decision, this time from the Indiana Supreme Court, Howard v. United States, No. 94S00-1106-CQ-333 (Mar. 20, 2012), a case in which the state court answered a question certified…

Continue Reading Guest Post: The DOJ And The Definition Of Insanity

Here is the Reply Brief in Harmon v. Kimmel, No. 11-496 (filed Mar. 20, 2012), the case in which a Manhattan property owner is challenging New York’s rent control law as unconstitutional:

Respondents confuse the issues with their scattershot assertions that rent stabilization concerns merely “landlord tenant relations,” “economic regulation,” “price controls” and “economic liberties,” and is just a matter of political and legislative policy. They disregard controlling precedent of this Court and seemingly concede that the Court of Appeals was mistaken. They also each acknowledge the existence of the “different case” standard set forth in Yee v. City of Escondido, 503 U.S. 519, 528 (1992). However, despite having argued otherwise to this Court and to the Court of Appeals in prior litigation, the State now argues that rent stabilization does not present the elements of the “different case” standard. The conflcts with decisions of this Court and…

Continue Reading Petitioner’s Reply Brief In New York Rent Control Case: “Permanent dispossession is nine-tenths of this law”

The Penn Central test — reaffirmed in Lingle as the regulatory takings “benchmark” in all but a few cases — is one of those “factor” tests in which the trier of fact is supposed to examine three things: (1) the economic impact of the regulation on the property; (2) the interference with investment-backed expectations, and (3) the character of the government action. None of these factors is supposed to be dispositive.

In Noghrey v. Town of Brookhaven, No. D33861 (Feb. 21, 2012), the Appellate Divison of the New York Supreme Court, however, held otherwise, and overturned a jury’s verdict that the town’s zoning regulations worked a Penn Central taking because the loss of value determined by the jury wasn’t enough:  

The jury was instructed that damages were to be assesed by determinng the value of the properties immediately before and immediately after the rezoning. The difference between those…

Continue Reading NY App: Can’t Have A Penn Central Taking With “Only” A 46% Loss In Value

Here’s the state’s BIO in Harmon v. Kimmel, No. 11-496 (cert. filed Oct. 17, 2011), the case challenging New York City’s rent control ordinance as a due process violation and as a taking. We posted the cert petition and the three amicus briefs in support here.

Both respondents waived their rights to file a BIO, but in December, the Court requested responses. Last week, we posted the City of New York’s BIO here.

Here’s the Court’s docket page for the case.Continue Reading State’s BIO In New York Rent Control Case

Here’s today’s second decision about attorneys fees and costs, this time in an inverse condemnation claim out of the Federal Circuit, Bywaters v. United States, No. 2011-1032 (Mar. 1, 2012).

In a class action rails-to-trails takings case under the Little Tucker Act (less than $10,000 per claim, district court venue), the trial court awarded the property owners attorneys fees and costs under the Uniform Relocation Assistance and Real Property Acquisition Policies Act. The government had stipulated to liability and the parties worked together to determine compensation for class members. Eventually, the district court approved a settlement for the entire class of approximately $1.25 million, interest included. The property owners then filed a claim seeking $832,000 in fees for 2,000+ hours of work. The market rate they sought was for attorneys in the District of Columbia (where their office is located), and not the Eastern District of Texas (the…

Continue Reading Federal Circuit Talks Attorneys Fees Under The Uniform Relocation Act

Gideon Kanner reminds us of the passing of retired California Court of Appeal Justice Lynn “Buck” Compton, famous of late for his exploits as a hard-charging paratrooper in World War II (L.A. Times story here). Gideon writes about Justice Compton’s time on the bench:

No, we aren’t going to wax lyrical about the high profile criminal cases in which he was involved, first as a prosecutor and later as a judge. We leave that to the popular press. We do wish to note that “Buck” Compton was one of the few — very few — California appellate judges who would give condemnees an even break, and for that he deserves our, and your thanks. He was tough-looking and blunt, but you knew when you appeared before him on behalf of property owners in an eminent domain case that he would listen to your arguments and give them fair …

Continue Reading Justice Lynn “Buck” Compton

This just arrived: in Edwards Aquifer Auth. v. Day, No. 08-0964 (Feb. 24, 2012), the Texas Supreme Court, applying the Penn Central test, held that the government is not entitled to summary judgment because “the three Penn Central factors do not support summary judgment for the Authority and the State. A full development of the record may demonstrate that … regulation is too restrictive of Day’s groundwater right and without justification in the overall regulatory scheme.” Slip op. at 45. The court began the unanimous opinion with this summary:

We decide in this case whether land ownership includes an interest in groundwater in place that cannot be taken for public use without adequate compensation guaranteed by article I, section 17(a) of the Texas Constitution. We hold that it does.

I’m liking the Texas Supreme Court these days.

We’re getting a brief ready for filing today, so I haven’t…

Continue Reading Texas: “The requirement of compensation may make the regulatory scheme more expensive, but it does not affect the regulations themselves or their goals for groundwater production.”

sidewalk Here’s one court that gets its doctrine right. Bonito Partners, LLC v. City of Flagstaff, No. 1 CA-CV 10-0819 (Feb. 21, 2012).

A property owner challenged a city ordinance that requires a landowner repair adjacent public sidewalks, else the city will do it and send the owner the bill, and if the landowner doesn’t  pay, the city will put a lien on the property.

The city told the owner to fix the broken and dangerous sidewalk next to its property. It didn’t (“Please proceed with the repairs. Do not wait for Bonito Partners, LLC to do the work.”). The city fixed it, charged the owner, and eventually put a lien on the property. The owner sued for both a taking and for due process.

The trial court granted the city summary judgment. In addressing the takings argument, the court of appeals first noted that takings and due process are…

Continue Reading Where The Sidewalk Ends: The Takings Power Is Different Than The Police Power

In our law review article on Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Environmental Protection, 103 S. Ct. 2592 (2010), we predicted that “the fractured opinions in the case will be a boon for academics who may continue the search for the ‘takings quark’ (if not woodchucks) in the pages of law journals.” Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, 35 Vt. L. Rev. 437 (2010).

It looks like our prediction is (thankfully) being borne out: earlier this week we posted a new article from the Stanford Law Review (here), and now comes another scholarly piece on the judicial takings issue, this time from the Cornell Law Review: Eduardo M. Penalver & Lior Jacob Strahilevitz, Judicial Takings or Due Process?, 97 Cornell L. Rev. 305 (2012) (pdf available here). Here’s the summary:

In Stop the Beach…

Continue Reading New Article: Judicial Takings or Due Process? (Cornell Law Review)