Inverse condemnation

Subscribe to Inverse condemnation via RSS

Yesterday’s Honolulu Star-Bulletin ran an editorial “Access to Oahu’s shoreline is being blocked little by little,” spurred by a brewing controversy regarding access to public beaches across private property in Kailua.  The editorial calls for political leaders to make access to public beaches “a priority,” by establishing an “enforceable policy” to promote access:

So the recent conflict between public entitlement and private landowners about a right-of-way to Kailua Beach is a common episode, one that will be repeated until a sensible, enforceable policy is established to support the access law and existing standards for pathways are implemented.

The editorial does not suggest what this “policy” might be.  It acknowledges the obvious means of acquiring private property for public access: eminent domain, which requires that the government pay just compensation and damages to the property owner(s).  It also acknowledges, however, that there may be no money in the public…

Continue Reading ▪ Shoreline Access Across Private Property – A Shortcut to Paying for the Change?

The merits brief of the United States in John R. Sand & Gravel Co. v. United States, No. 06-1164 has been posted here.  Docket listing here. 

The case involves an inverse condemnation claim against the federal government under the Tucker Act.  Apparently, thegovernment in the Court of Federal Claims did not raise a statue of limitations defense, nor did it on the appeal to the Federal Circuit. 

But the Federal Circuit raised and decidedthe issue sua sponte, dismissing the case because the statute of limitations goes to jurisdiction, and cannot bewaived.  The Federal Circuit opinion is posted here (500kb pdf).

The Question Presented by the property owner/petitioner as I mentioned here is:

The statute of limitations in the Tucker Act, 28 U.S.C. §2501, provides: “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed…

Continue Reading ▪ Government Brief in Federal Inverse Condemnation Statute of Limitations Case

The US Supreme Court has denied review to MiPro Homes, L.L.C. v. Mount Laurel Township (No. 06-1345) (docket listing here).  The question the Court was asked to review was:

Whetherthe Takings Clause of the Fifth Amendment to the Constitution prohibitsa municipality from taking private property for “public use” when themunicipality’s public use determination is ad hoc, pretextual, and notpart of a comprehensive planning process.

A summary of the case, including the petition and the decisions of the New Jersey courts is posted here.

Also denied was McNamara v. City of Rittman (No. 06-1481) (docket listing here), a petition asking the court to reconsider the ruling in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), which requires a property owner to utilize available state compensation remedies prior to suing in federal court for a regulatory taking or inverse condemnation.  The Sixth Circuit’s decision Continue Reading ▪ Post-Kelo Cert. Petition (MiPro) Denied

You can read the court’s Findings of Fact, Conclusions of Law, and Order here.

I won’t be commenting on this decision since my colleagues Ken Kupchak, Mark Murakami and I are the attorneys for the property owner, but the statement of the family that owns the land is below.

# # # #

Circuit Judge Ronald Ibarra has decided in favor of a local Kona family, ruling that the County of Hawaii illegally sold its power of eminent domain to Scottsdale, Arizona-based luxury developer Hokulia.  In the County-Hokulia Development Agreement, the County allowed Hokulia to control what property would be seized, permitted Hokulia’s lawyers to threaten the Richards Family and its neighbors, and forced the County to bring lawsuits against its own citizens to take their property. 

The court ruled that the County-Hokulia Development Agreement violated state law because it illegally transferred the County’s power to take the property

…
Continue Reading ▪ Court Strikes Delegation of Eminent Domain and Reimbursement to Private Party

New Jersey Eminent Domain Blog posts “Eminent Domain, Fifth Amendment Property Rights, and Government Retaliation” about last Term’s US Supreme Court decision in Wilkie v. Robbins:

But what makes Wilkie particularly troubling is the clearpattern of harassment against Robbins by the BLM over the course offive years. While the alleged violations by BLM employees againstRobbins have administrative and state court remedies, the problemremains that these could only be pursued piecemeal, at the greatexpense of time and money by the property owner.

. . .

The question remains: Where does an aggrieved citizen like Robbins seekredress? Administrative and state judicial actions for individualincidents are a far from satisfactory remedy. However, this isprecisely what the Court suggested, and it is consistent with theCourt’s decision in San Remo Hotel L.B. v. City and County of San Francisco,125 S.Ct. 2491 (2005). The message is clear: A property owner must seekrelief…

Continue Reading ▪ More on Wilkie v. Robbins – Where to go When Government Goes Wild

In a case that illustrates the lengths a court will go to avoid dealing with the merits of a takings challenge, the Ninth Circuit in Equities Lifestyle Prop., Inc., v. County of San Luis Obispo (No. 05-55406) (Sep. 17, 2007), held that the plaintiff was both too early (not yet ripe under Williamson County) and too late (missed the statute of limitations).  In that opinion, the Ninth Circuit affirmed the dismissal of a challenge to a voter-approved mobilehome “rent stabilization” (rent control) ordinance.  The court ruled:

  • Standing: the county challenged the ability of the plaintiff to bring suit because it did not have “title ownership” of the mobilehome park.  The court held that pecuniary injury, not title ownership is the key to standing, and allowed the suit to proceed.
  • Takings: the court rejected the “as applied” takings challenge on Williamson County grounds because the plaintiff had not availed itself

…
Continue Reading ▪ Ninth Circuit: No Takings and Due Process Challenge to Cal. Rent Control Ordinance

There’s an interesting discussion going on over at Professor Patty Salkin’s Law of the Land blog about a recent Ohio appeals court decision applying Lingle v. Chevron USA, 544 U.S. 528 (2005). 

Lingle didn’t get rid of the “substantially advance” test, it merelyrelocated it to due process, and reminded us that in thosecircumstances where there is not a per se taking by wipeout of“beneficial” use (Lucas) or an occupation (Kaiser Aetna, Loretto),courts go back to Penn Central where no factor appears to bedispositive. So even if there is some value or use left in the land,Penn Central could allow for a finding of a taking, depending on thecircumstances of the case and how the other elements factor into thecalculus.

The opinion in Boice v. Village of Ottawa Hills (No. L-06-1208) (Aug. 31, 2007) is posted here.Continue Reading ▪ Ohio Court Applies Lingle and Penn Central

To my colleagues at the LINC conference in D.C., thank you for the opportunity to present the topic.  Here are links to the cases discussed:

…
Continue Reading ▪ Links for “Progress in Protecting Property Rights Post-Kelo“

The Maui News reports that Maui’s “workforce housing” ordinance has been challenged:

Lawyers for a Canadian condominium developer, who is seeking to buildtwo multiunit projects in the Kamaole area, are seeking a court orderto block the county from implementing the law that the developer saysis defective.

The lawsuit alleges the housing policy adopted by the council last yearfailed to include a “close nexus” between new developments and the needfor affordable housing, is “an arbitrary, unreasonable impairment” ofproperty rights and violates due process rights.

It also charges that the county policy does not meet the standards for imposing impact fees allowed by a state law.

Complete story here.  The Maui ordinance, enacted last year, imposes a 40% to 50% affordable requirement on new housing developments. 

The Complaint for Declaratory and Injunctive Relief (filed Aug. 23, 2007) is posted here.

I also discussed the ordinance earlier here and here.  Continue Reading ▪ Nollan/Dolan Challenge to Maui’s Forty Percent Affordable Housing Exaction

The Ninth Circuit recently decided Vacation Village, Inc. v. Clark County, No. 05-16173 (July 23, 2007), a case that has just about everything in terms of regulatory takings issues in federal court: the Penn Central standard for regulatory takings, Williamson County ripeness, Rooker-Feldman, exhaustion of administrative remedies, federal preemption, choice of law under Erie, and independent and adequate state law grounds.

I won’t go into the details, which are set forth here and in the opinion.  The basic issue in the case is whether airport-related height and use restrictions are regulatory takings under the Nevada Constitution.  The most interesting aspect to the opinion is that the court held the plaintiff complied with Williamson County‘s requirement that a landowner first seek state remedies before seeking federal remedies.  The court noted that the plaintiff only asserted state law claims, and the case was in federal court only…

Continue Reading ▪ New Ninth Circuit Regulatory Takings Case Has It All