Inverse condemnation

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Comes news that the State Land Use Commission has reclassified a large portion of state-owned land in east Oahu from “urban” to “conservation.” See Ka Iwi shoreline area reclassified as conservation land (via Hawaii News Now) and Ka Iwi coast gets added protection (via the Honolulu Advertis…Honolulu Star-Advertiser). The reports state the “reclassification should make the development of the makai [seaward] area of the coastline ‘a remote possibility'” (quoting the governor’s press release).

The reclassification from urban to conservation means that instead of the City and County of Honolulu’s zoning regulating the land, the State Department of Land and Natural Resources will exercise exclusive regulatory control. (Land classified urban is zoned and primarily regulated by the counties, whereas under Haw. Rev. Stat. § 205-5, the DLNR exclusively regulates conservation-designated land.)

But we’re not quite sure what we’re missing here, since it seems the fact the…

Continue Reading You Take It, You Bought It

A couple of days ago, we posted “Final Briefs In Hawaii Beach Takings Case: Is ‘Future’ Accretion A Present Property Interest?” with what we thought was a complete set of the merits and amicus briefs filed in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (cert. application filed Apr. 22, 2010).

Turns out we missed one set, the amicus brief of Hawaii’s Thousand Friends which urges the Hawaii Supreme Court not to accept the application for a writ of certiorari filed by the property owners, and the property owners’ brief responding to HTF’s brief.

Here they are:

[Our usual disclosure: we filed an amicus brief in the Intermediate Court of Appeals supporting the property owners, and recently filed an amicus brief in the Supreme Court].

Unless there is another…

Continue Reading Final (Final) Briefs In Hawaii Beach Taking Case: Is “Future” Accretion A Present Property Interest?

Here are the latest filings in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (cert. application filed Apr. 22, 2010). In that case, the property owners are asking the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), which held that “Act 73” (codifed here and here) was a taking. [Disclosure: we filed an amicus brief in the ICA supporting the property owners, and recently filed an amicus brief in the Supreme Court – see below].

In Act 73, the legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of accreted land…

Continue Reading Final Briefs In In Hawaii Beach Taking Case: Is “Future” Accretion A Present Property Interest?

This just in: the Ninth Circuit has issued an opinion in Adam Bros. Farming, Inc. v. County of Santa Barbara, No. 09-55315 (May 14, 2010).

Adam Bros. Farming, Inc. and Iceberg Holdings, L.L.C. (collectively “Adam Bros.”) appeal from the district court’s dismissal of their joint complaint. Adam Bros. sued the County of Santa Barbara and several of its employees (collectively “the county”) in federal court, alleging that the county had, through a false wetland delineation, temporarily taken its land without providing just compensation in violation of the Fifth Amendment. The district court granted the county’s motion to dismiss and concluded that Adam Bros.’s claim was not ripe because Adam Bros. failed to demonstrate that it had sought and was denied just compensation under state law. Because we conclude that Adam Bros.’s claim is barred by the application of res judicata, we affirm the district court’s judgment.

More to follow after a chance to digest the opinion.
Continue Reading New Ninth Circuit Ripeness And Res Judicata Regulatory Takings Case

Orange-fruit-2When the state purposely destroys healthy citrus trees as part of a program to address citrus canker, it must pay the owners of the trees just compensation.

In Dep’t of Agriculture & Consumer Services v. Borgoff, No. 4D08-4474 (May 12, 2010), the Florida District Court of Appeal (Fourth District) affirmed an $11 million class action jury verdict ordering the Department of Agriculture to pay for the more than 100,000 non-commercial trees it cut down and destroyed in Broward County. The Department’s eradication program destroyed any citrus tree within 1,900 feet of any tree found with citrus canker. The court concluded this was a taking: 

Cutting down and destroying healthy noncommercial trees of private citizens could hardly be more definitively a taking. Government has regulatory power for the very purpose of safeguarding the rights of citizens, not for destroying them.

Slip op. at 6 (footnote omitted) (emphasis added). The court…

Continue Reading Florida Court Of Appeal: State Must Pay When It Destroys Healthy Orange Trees

SCOTUSblog has listed Sharp v. United States, No. 09-820 as a “petition to watch” for the Court’s conference today.

May 17, 2010 Update: cert. denied.

In that case, the property owners are asking the U.S. Supreme Court to review the Ninth Circuit’s decision in United States v.  Milner, 583 F.3d 1174 (9th Cir. 2009), which held that a littoral owner was liable for trespass in waters held by the federal government for the benefit of the Lummi Nation, and for violation of the Rivers and Harbors Act formaintaining a “shore defense structure.” The structure was built onprivate fast (dry) land, but the shoreline eventually eroded up to it.

In the opinion, detailed in this post, the Ninth Circuit held that “both the tideland owner and the upland owner have a right to anambulatory boundary, and each has a vested right in the potential…

Continue Reading Petition To Watch: Is A Littoral Owner Trespassing When The Shoreline Erodes?

In a partially-published* opinion in Ridgewater Associates, LLC v. Dublin San Ramon Services District, No. A124661 (Apr. 11, 2010), the California Court of Appeals (First District) held that a property owner did not muster sufficient proof to support its claim for inverse condemnation against a neighboring sewage treatment facility. Ridgewater claimed that water from the facility intruded on its property.

The appeals court first rejected the trial court’s conclusion that Ridgewater lacked standing because it was seeking relief for damages that occurred prior to its purchase of the property. The court held that by asserting it has been forced to pump intruding water off of its land, Ridgewater was asserting a claim for damages occurring during its ownership, and not for damages incurred before. Slip op. at 6 (“Ridgewater claims that rising water in the loading dock must be pumped to and over the paved surfaces on…

Continue Reading Cal Ct App: You Knew The Property Was Damaged When You Bought It

“Our decision today recognizes that snow and snowplowing are facts of life in Vermont, and we do not find a cause of action when defendant has done nothing more than protect public safety by plowing the roads that it has an ongoing legal duty to plow.”

Ondovchick Family Ltd. P’ship v. Agency of Transportation, No 2009-182, at ¶ 22 (Apr. 30, 2010).

There you have it: one of those decisions where its really not productive to dig deeper, or to try and reconcile it with other cases. You know the kind of decision we’re talking about, the kind where the opinion begins with “The widow Plaintiff…” and that you don’t need to read much further to know the result the opinion is going to reach, or why.

Oh, we could try and analyze the Vermont Supreme Court’s opinion in Ondovchick more closely. But that might be a…

Continue Reading Vermont Supreme Court: Snow Is A Fact Of Life In Vermont

Yesterday, I had the pleasure of speaking to members of the Western Manufactured Housing Communities Association about some of the legal issues facing their businesses, and property owners in general. Here are the links I mentioned:

  • Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir. 2009) (en banc review ordered Mar. 12, 2010). This is the very important case regarding the city’s mobile home rent control ordinance, which the Ninth Circuit panel concluded worked a facial taking of property under Penn Central. We have the briefs which have been filed for en banc review, and will be posting them in the upcoming days. Most definitely a case to watch.
  • A recent opinion from the California Court of Appeal in another rent control

…
Continue Reading Links From WMA Presentation – Regulatory Takings, Rent Control, And Guggenheim