Inverse condemnation

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Today’s post is authored by colleague 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.

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Last week, Senior Judge Loren A. Smith of the Court of Federal Claims issued his opinion in the Trails Act taking case, Buford v. United States, __ Fed. Cl. ___ (Slip Op. February 7, 2012), 2012 WL 401607. Judge Smith’s decision was the 16th decision from this Court in the past year finding the government liable for taking citizens’ land underlying an abandoned railroad…

Continue Reading Guest Post: DOJ’s Rails-to-Trails Strategy Fails

As he writes in yesterday’s column, “Supreme Court should take on New York City’s rent control laws.” He’s writing about the Harmon case and the cert petition which the Supreme Court is currently considering:

Rent control is unconstitutional because it is an egregious and uncompensated physical occupation of property. The Constitution says that private property shall not “be taken for public use, without just compensation.” The Harmons get no compensation for being coerced into privatized welfare: The state shows compassion to tenants — many of whom are not needy; one of the Harmons’ entitled tenants owns a house on Long Island — by compelling landlords to subsidize them.

We’ve posted the cert petition and the amicus briefs in support (start here).Continue Reading George Will Doesn’t Like Rent Control

We’ve been meaning to post this interesting and important case, but it got lost in the shuffle. Thanks to a colleague for the reminder. 

Try explaining that headline to anyone but a land use lawyer, and they would think you are a little bit crazy. What is so odd about a federal court actually exercising its core jurisdiction to consider whether a local government has violated someone’s federal constitutional rights?

As readers of this blog know, the one-two punch of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323 (2005), renders a federal forum for federal takings and related claims nearly impossible unless the stars align just right. In R&J Holding Co. v. Redev. Auth. of County of Montgomery, No. 10-1047 (Dec. 9, 2011), they apparently…

Continue Reading There, That Wasn’t So Hard, Was It? Third Circuit Actually Lets Landowner Raise Federal Constitutional Claims In Federal Court

A recently-published Note from the Stanford Law Review: Josh Patashnik, Bringing a Judicial Takings Claim, 64 Stan. L. Rev. 255 (Jan. 2012). Here’s the abstract:

This Note seeks to answer a set of questions prompted by the Supreme Court’s 2010 decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. In that case, six Justices recognized that the Constitution provides some protection against so-called judicial takings—court decisions that, like executive and legislative action, might be deemed to take property rights. But the Court’s fractured holding provided little guidance on a handful of practical issues that will be of immense interest to potential judicial takings plaintiffs, like whether such claims can be brought in federal court and what remedies might be available. I argue that a judicial takings plaintiff should be able to bring her case in federal district court, notwithstanding the barriers the Supreme…

Continue Reading New Article: Bringing a Judicial Takings Claim (Stanford Law Review)

Here’s the final amicus brief supporting the petitioner in the case challenging New York City’s rent control ordinance. The case is in the cert stage (we posted the petition here, along with the other three amicus briefs supporting the petition), and although the respondents initially waived their response rights, the Court requested a response which is now due on March 5, 2012.

Here’s more on the case:

The Court’s docket report is here. Continue Reading One More Amicus Brief In NYC Rent Control Takings Challenge

Here are the links to the cases and other items discussed today at the International Municipal Lawyers Association webinar with Dan Mandelker and Dwight Merriam. Most of these cases are also in your written materials.

  • South Carolina Bar’s

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Continue Reading Links From Today’s IMLA Regulatory Takings Webinar

Most of the cert petitions about eminent domain in recent years have focused on the “public use” side of the equation, and not on the “just compensation” side. That’s not surprising, since the Kelo issue (the power to take) has been the object of intense public interest, so much so that as eminent domain lawyers, we no longer pass under the public radar. (We say “most” since there have been a few petitions on the compensation issue, all denied. Here for example.)

But now comes this cert petition (River Center LLC v. The Dormitory Authority of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012)) which presents three questions focused directly on the Just Compensation Clause. It’s a case we’ve been following as it worked its way up through the New York state court system, and it is now ripe for U.S. Supreme Court …

Continue Reading New Cert Petition: Just Compensation For Development Potential, Inequitable Precondemnation Activities

Last week, San Diego was on our karmic radar, as we were there for the annual ALI-ABA Eminent Domain conferences and there were a couple of cases and issues involving San Diego that popped up. This week, we’re off to the ABA Midyear meeting in New Orleans, so guess where the cases are coming from? YesContinue Reading CFC, New Orleans Edition

Here are the cases Professor Callies and I discussed in today’s session at ALI-ABA’s Eminent Domain and Land Valuation conference:

  • McCandless v. United States, 298 U.S. 242 (1936) – an offer of proof that irrigation water could be transported to the land was not too “remote and speculative,” and should have been allowed in support of the property owner’s contention that the highest and best use of the land taken was to grow sugar cane.
  • Damon v. Hawaii, 194 U.S. 154 (1904) – when an ahupuaa patent includes the adjacent fisheries, the U.S. Constitution recognizes that interest as “property.”
  • Kaiser Aetna v. United States, 444 U.S. 164 (1979) – when a private waterway, recognized as private property under Hawaii law, is modified by private effort and investement into a navigable waterway, the government can only impose a right of public access by condemnation.

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Continue Reading ALI-ABA Annual Eminent Domain Conference, San Diego: “The Role of Hawaii’s Unique Property Law in the U.S. Supreme Court’s Takings Cases”

The San Diego area must be on the karmic radar this week, and here’s the latest: a Federal Circuit decision in a case involving the U.S. Border Patrol’s activities on private land on the border with Mexico. In Otay Mesa Property, L.P. v. United States, No. 2011-5002 (Jan. 25, 2012), the court held that an agreement by which property owners allowed the federal government to install motion-sensing devices on their land resulted in a permanent physical taking and not temporary. The court also clarified the property “taken,” and how just compensation should have been calculated.

You can’t get any closer to the border than San Diego’s Otay Mesa neighborhood. The plaintiffs own several parcels abutting the border, and 20 years ago their predecessor-in-title granted the Border Patrol an easement along the border to allow it to, well, patrol the border.

The Border Patrol stepped up its activities after 2001…

Continue Reading Fed Circuit On The Difference Between “Temporary” And “Permanent” Physical Takings