Inverse condemnation

Subscribe to Inverse condemnation via RSS

11.LULHI Mark your calendars for January 13 and 14, 2011 for the 5th Hawaii Land Use Law Conference, to be held in Honolulu. Yes, it’s a few months away, but this is the Big One, it only comes around every two years, and you don’t want to miss it. 

The program chairs are Professor David Callies and land use attorney Ben Kudo, and they have assembled an expert and diverse faculty, including keynote speaker Professor Gideon Kanner (no stranger to readers of this blog).

  brochure

, which contains all the details and a registration form.

Here’s the program description:

The Hawai`i system of land use is complex and private land use is highly regulated. Attorneys and legal staff, planners, government officials, land owners and developers need to understand the complex federal, state and local requirements and procedures.

An expert faculty of land use practitioners, planners and regulators will explain the…

Continue Reading January 13 & 14, 2011: 5th Hawaii Land Use Law Conference

Takings lawyers know Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) stands for the proposition that a regulation allowing a physical invasion of private property — no matter how de minimus the invasion might be — is a per se regulatory taking. In those instances, the right to exclude is such a fundamental aspect of what it means to own “property” that even a minor infringement is forbidden. In that case, the U.S. Supreme Court struck down a New York City regulation requiring Loretto allow the installation of a small cable TV box on the roof of her apartment building.

In Corsello v. Verizon N.Y., Inc., No. D25897 (Sep. 14, 2010), the New York Appellate Division revisited those facts for telephone equipment. Over the years, Verizon installed equipment on Corsello’s building in New York, and over the years, he demanded that Verizon remove it. The trial…

Continue Reading Shades Of Loretto From The New York Appellate Division

Here’s a case that reveals exactly what is wrong with the Supreme Court’s ripeness doctrine in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985). As we noted in this post, it’s “a seemingly endless procedural game where property owners are forced to keep guessing which shell the pea is under, all the while paying their attorneys to litigate matters having nothing to do with the question of whether a local government’s regulations have gone ‘too far.'”

The Oregon Supreme Court’s opinion in West Linn Corporate Park v. City of West Linn, No. S056322 (Sep. 23, 2010) only confirms our belief that the Court never intended Williamson County to be wielded in this fashion, and in effect deny property owners their day in court.

This case has a tortured procedural history. It started off in state court, as required by Williamson County. The property…

Continue Reading Williamson County Unbound: Takings Case Starts In State Court, Is Removed To Federal Court, Is Certified To State Court, Which Decides The Case On Federal Law

Not a landmark case, but one worth noting. In Mathews v. City of Chattanooga, No. E2009-01418-COA-R3-CV (Sep. 15, 2010), the Tennessee Court of Appeals rejected the property owner’s claim that the city exceeded the scope of a utility easement when it installed fiber optic cable. The property owner asserted the easement was limited to electric service.

The trial court entered summary judgment for the city on the basis of the statute of limitations because the plaintiff had waited too long from the time the fiber optic cable was installed to assert his claim. The court of appeals affirmed, but on different grounds. It wasn’t a matter of time, the court held, because the plaintiff had no claim for inverse condemnation at all. The city “had the unquestioned lawful right to install the fiber optic cable within the easement for the transmission of electric service,” slip op. at 3, and…

Continue Reading Tennessee App: No Inverse Condemnation When Utility Used Electricity Easement For Fiber Optic Cable

We’ve been kind of light on the blogging lately (epic road trip combined with brief writing does not a happy blogger make), but we did want to give a heads-up that our Owners’ Counsel of America colleagues Dennis Dunphy and Jill Gelineau have launched a new blog focusing on condemnation and land use issues in the Pacific Northwest. They are partners in Schwabe Williamson & Wyatt (in Seattle and Portland, respectively) and will focus on condemnation issues in the region.

They’ve actually been blogging since early 2010, but have recently picked up steam.

Check out Schwabeblog: Condemnation. Worth following.Continue Reading New Condemnation Law Blog Focuses On Pacific Northwest

Here are the latest briefs in United States v. Tohono O’odham Nation, No. 09-846, (cert. granted Apr. 19, 2010), the case involving the subject matter jurisdiction of the Court of Federal Claims currently awaiting argument in the U.S. Supreme Court. Disclosure: we filed an amicus brief supporting the Tohono O’odham Nation in the case.

Here are the other briefs in the case:

More on the case here. Oral argument is set for November 1, 2010.

    Continue Reading Latest Briefs In Supreme Court Case On CFC Jurisdiction

    The Supreme Court’s multiple opinions in Stop the Beach Renourishment v. Fla. Dep’t of Envt’l Protection, 130 S. Ct. 2592 (2010), although unanimous in concluding that the Florida Supreme Court’s decison was not a judicial taking, were not the last words on the subject. Six justices concluded that in the right circumstances, a decision by a state supreme court would violate the takings or due process clauses, while the remaining two justices concluded that some future case might be the right vehicle to decide whether a court decision could take property.  

    Our suspicions that the case marked the opening of the judicial takings canon and not its closing were quickly confirmed. Last week, we posted this cert petition in another beach case from Hawaii that draws the takings question more precisely than Stop the Beach Renourishment, and earlier we asked “Why Isn’t This A ‘Judicial Taking?’…

    Continue Reading New Cert Petition: More Judicial Takings, This Time From Montana

    Check it out: the William and Mary Property Rights Project and the Institute of the Bill of Rights Law will present the 7th Brigham-Kanner Property Rights Conference on September 30 to October 1, 2010. The recipient of this year’s prize is lawprof Carol M. Rose (U. Arizona).

    More information, including a link to registration information here, from the Owners’ Counsel of America blog.
    Continue Reading Upcoming Conference: 7th Annual Brigham-Kanner Property Rights Conference (9/30)

    The littoral property owners who won a partial victory in the Hawaii appellate courts have filed this cert petition asking the U.S. Supreme Court to review the decision of the Hawaii Intermediate Court of Appeals which concluded that ownership of beachfront property includes only a partial right to accreted land. In Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), the ICA held that held that “Act 73” (codifed here and here), the statute in which the legislature simply redefined accretion as public propertywas a taking, but accepted the State’s argument that Act 73 did not affect a taking of what it called “future” accretion, because the right is simply a contingent future interest.

    In Act 73, the Hawaii Legislature changed over a century of common law and declared that title to shoreline land naturally accreted cannot…

    Continue Reading Cert Petition In Hawaii Beach Takings Case: Is The Right To Accretion A “Property” Interest?

    This Friday, August 6, 2010 from 2:30 – 4:00 p.m. as part of the ABA Annual Meeting in San Francisco, the Section of State and Local Government Law is co-sponsoring a panel discussion of what was, in my opinion, the most fascinating case of the Supreme Court’s recently-concluded term, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010).

    This Term, the Court dealt with corporate speech, guns, “crush videos,” process patents, and Sarbanes-Oxley, but in Stop the Beach Renourishment, the Court attempted to tackle the most metaphysical of questions: can a state supreme court decision “take” property by changing the law? In the case, the Court came tantalizingly close to holding that a state supreme court decision can run afoul of the Fifth Amendment’s Takings Clause and take property without just compensation. The Court concluded that the Florida Supreme Court’s…

    Continue Reading Upcoming ABA Panel On The Judicial Takings Case (San Francisco 8/6/2010)