Inverse condemnation

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Captain-Jack-Sparrow-with-swordHere’s a short one for you civil procedure mavens: in Pinellas County v. Baldwin, No. 2d11-2274 (Jan. 20, 2012), the District Court of Appeal (Second District) concluded that a property owner could bring an inverse condemnation action against the County of Pinellas in a court in the County of HIllsborough.

Under Florida procedure, when suing the government, the action must, generally speaking, be brought in the government’s home court. Thus, when suing a county, the proper venue for the lawsuit is in the trial courts of that county. But there are exceptions to that rule.

Here, Pinellas County owned a borrow pit physically located in Hillsborough County. Baldwin alleged that her land was permanently flooded and thus taken when the borrow pit overflowed as a result of construction. She instituted her inverse condemnation lawsuit against Pinellas County in the courts of Hillsborough County, and Pinellas moved to dismiss by…

Continue Reading Fla App: Inverse Condemnation Triggers “Sword-Wielder” Venue Exception

We’ve been watching Bowers v. Whitman, No. 10-24966 (Jan. 12, 2012), the case which challenged Oregon’s Measure 49, the statute adopted by initiative that replaced and modified the earlier Measure 37. Measure 37, for those not aware, was the initiative measure by which Oregon voters required the state to compensate owners whose private property was devalued by land use regulations. It essentially required the state to either allow development or pay, even if the regulation did not run afoul of the high thresholds of regulatory takings doctrine.  

Back to Measure 49. That statute, as the Oregon Supreme Court held, “conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners.” Corey v. Dep’t of Land Conservation & Dev., 184 P.3d 1109, 1113 (Or. 2008). But what of those landowners in process under Measure 37 when the voters adopted the new…

Continue Reading 9th Cir: No Vested Rights Taken By Oregon’s Measure 49

Now that we’ve decked the halls, its time to clear the decks: the end of 2011 is on the horizon, and in order to start 2012 off on a fresh note, here are opinions of interest lined up in our “to post” queue, but that we’ve not found the time to actually digest and post:

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Continue Reading Year-End Opinion Dump

Once again, our old friend and colleague Paul Schwind is following an interesting ongoing case. We’ve been tracking the “Bridge Aina Le`a” litigation, but have not had the time to digest the latest developments in a comprehensive fashion and Paul attended the recent federal court hearing in the federal phase, and has kindly provided us with the details. 

The litigation is a series of two lawsuits that originated in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal (that’s a writ of administrative mandate for you Californians). The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this portion of the case nearly caused us to flash back to our Federal Courts class in law school, since it raised a host of procedural questions such as the…

Continue Reading Guest Post: Federal Courts Flashback – Takings And Vested Rights Challenge To Land Use Commission

SCOTUSblog has listed a case we’ve been following, Arkansas Game & Fish Comm’n v. United States, as its “petition of the day” (cert petitions identified as “raising one or more questions that have a reasonable chance of being granted in an appropriate case”). SCOUTSblog posts the cert petition and the amicus briefs in support here.

In that case, the Federal Circuit in a 2-1 opinion concluded that temporary flooding is not a compensable taking, merely because they were temporary. The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases, and regularly results in awards of compensation.

We posted the Federal Circuit’s opinion here, and the Supreme Court’s docket report is here.

The Question Presented by the cert petition:

Petitioner Arkansas Game & Fish Commission, a constitutional entity of the State of Arkansas, sought…

Continue Reading New Cert Petition: Is Temporary Flooding A Compensable Taking?

Count us in the “not surprised” column: the property owners have sought a panel rehearing or a rehearing en banc from the Federal Circuit in CCA Associates v. United States, No. 2010-5100 -5101 (Nov. 21, 2011).

The petition for rehearing asserts

If any case cried out for en banc review, this is the one. The decisions of this Circuit regarding the effect of the ELIHPA and LIHPRHA statutes are in conflict, not only with each other, but also with settled law on regulatory takings and contract formation. The panel majority acknowledged this conflict but held that it had no choice but to follow the Court’s decisions in Cienega Gardens v. United States, 503 F.3d 1266 (Fed. Cir. 2007) (“Cienega X“) and Ciegega Gardens v. United States, 194 F.3d 1231 (Fed Cir. 1998) (“Cienega IV“).

The exceptionally important issues presented by this petition, including…

Continue Reading Petition For Rehearing/En Banc In CCA Associates: Time To “Sort Out” Takings Law

We’re gearing up for a Supreme Court argument tomorrow, so don’t have time at the moment to digest the entirety of today’s opinion in Avenida San Juan P’ship v. City of San Clemente, No. G043479 (Cal. Ct. App. Dec. 14, 2011). But a quick glance tells us we’re going to like it.

A California trial court concluded that the city’s zoning a 2.85 acre parcel with a density of one house per 20 acres, while the surrounding properties are zoned at a density of four houses per acre was unconsitutional “spot zoning.” The court issued a writ of mandate (remember, this is California) ordering the City to accept the property owner’s application to develop four houses on the parcel.

The trial court also found a Penn Central taking and ordered the City to either comply with the writ or pay $1.3 million in just compensation for the…

Continue Reading Cal Ct App To City: Either Reverse Your Unconstitutional Spot Zoning, Or Pay. Your Choice.

The old adage is that a waterway is “navigable” for purposes of federal law if it is deep enough to float a Supreme Court opinion. Seriously, though, the less cheeky test of navigability is whether a waterway is capable of being used in its natural state as an avenue of commerce, meaning whether it was actually navigable at the time of a state’s admission into the Union. Really, that’s the test.

But as the Supreme Court reminded more than 30 years ago, when applying this general test for navigability, you must keep in mind the purpose  

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Wednesday’s oral arguments in PPL Montana v. Montana, No. 10-218 (cert. granted June 20, 2011) started off on familiar territory with Justice Kennedy breaking the ice quickly, asking Petitioner’s counsel Paul D. Clement whether his point is “that there should be a Federal rule of — laches or estoppel, or are…

Continue Reading What Does It Mean To Be “Navigable?” – Supreme Court

Here’s the latest in the Casitas case from the U.S. Court of Federal Claims. Casitas Municipal Water Dist. v. United States, No 05-168L (Dec. 5, 2011). This case highlights the importance of identifying the “property” right alleged to have been taken in these type of cases:

This case is before the court following a trial held to determine the compensation, if any, owed to plaintiff under the Fifth Amendment to the United States Constitution for the taking of its property. In an earlier round of litigation in this case, the Court of Appeals for the Federal Circuit ruled that operating restrictions on plaintiff’s water project imposed by the National Marine Fisheries Service “NMFS”) pursuant to the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531–44 (2006), should be analyzed as a physical taking where plaintiff was required to reroute a portion of the water it had diverted for its own…

Continue Reading Court Of Federal Claims: Water Rights Takings Claim Not Ripe (Flashbacks To The Hawaii Water Rights Case)

In Joffe v. City of Huntington Park, No. B222880 (published Dec. 2, 2011), the California Court of Appeal affirmed the trial court’s dismissal (technically, the trial court “demurred” —  remember, this is California) of the plantiffs’ claim for inequitable precondemnation activities under Klopping v. City of Whittier, 8 Cal.3d 39 (1972). 

Plaintiff manufactures furniture at its property in Huntington Park, California, and

[b]eginning in 2002, the City defendants and the developer defendants repeatedly expressed the intent and desire to acquire and develop two adjacent 40 acre sites for the purpose of building and developing 920,000 square feet of buildings which would include numerous retailers, shops and restaurants. . . . It specifically included the property owned by Joffe, where Plycraft conducted its furniture manufacturing business. The project development was designated “El Centro de Huntington Park” (hereafter, the project).

During the period 2002 through 2008, plaintiffs were repeatedly…

Continue Reading If The City Wasn’t Taking Steps To Condemn The Property, What Was It Doing?