Inverse condemnation

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Oral arguments in Cienega Gardens v. United States (Fed. Cir. No. 06-5051, Apr. 2, 2007), a case involving the application of the Penn Central ad-hoc test for regulatory takings, have been posted in two parts on the Federal Circuit’s web site: part 1 (68mb mp3), and part 2 (7mb mp3).

Also posted is the oral argument in the related case, Chancellor Manor v. United States (Fed. Cir. No. 06-5052, Apr. 2, 2007) here (39mb mp3).Continue Reading ▪ Federal Circuit Arguments on the Penn Central Factors (mp3)

In United States v. 191.07 Acres of Land (Martinek)(No. 04-35131, Apr. 4, 2007), the Ninth Circuit set out a good definition of “inverse condemnation” in the context of when a property owner has a right to a jury trial for federal takings. 

    Where the [condemnor] does not acquire privately owned land statutorily but instead physically enters into possession or institutes regulations that restrict the land’s use, the owner has a right to bring an “inverse condemnation” action to recover the value of the land.  Kirby Forest [Inds., Inc. v. United States, 467 U.S. 1, 4-5 (1984)].  “Such as suit is ‘inverse’ because it is brought by the affected owner, not by the condemnor.  The owner’s right to bring such a suit derives from the self-executing character of the constitutional provision with respect to condemnation.”  Id. at 5 n.6

(slip op. at 3865).  In Martinek…

Continue Reading ▪ What is “Inverse Condemnation?”

New Jersey Eminent Domain blog posts a good summary of the Robbins v. Wilkie case currently pending in the US Supreme Court:

The critical issue for Robbins and other property owners asserting their 5th amendment rights is whether they can do so without fear of retaliation by government officials. Many property owners affected by eminent domain are reluctant to speak out, fearing government retaliation, which may come in the form of code enforcement, health and safety inspections — all done with an objective to force them to give up their property rights for redevelopment before, or even resisting, the eminent domain process.

Very true.  Not all retaliation against property owners is as overt as what the BLM officials are alleged to have done to Mr. Wilkie, and government “payback” may take many forms.  When such behavior goes too far, the law should recognize that property owners may seek relief in…

Continue Reading ▪ Retaliation for Asserting Constitutional Right of Property

An interesting decision from the Kansas federal district court, Mount St. Scholastica, Inc. v. City of Atchison, No. 06-2208-CM (Mar. 12, 2007), contains a land use trifecta: historic preservation, religious objections to a denial of a permit, and regulatory takings.  (No link yet to opinion, which currently is only available via Westlaw; email me if you want a copy.  Update: Becket Fund for Religious Liberty has posted a copy of the opinion on its web site.)

Mount St. Scholastica, a “monastic community,” owns property that includes a building constructed in 1924 that has in the interim been used for classrooms, administration, and a community center.  By 1989, however, it had apparently outlived its usefulness to Mount St. Scholastica, which in 2005 sought a demolition permit from the city. 

The building itself apparently is not landmarked, but is near to historic properties, so under Kansas law, the owner needed a…

Continue Reading ▪ Land Use Trifecta: Historic Preservation, Religious Uses, and Regulatory Takings

Which issue is more important when it comes to utilizing scarce federal judicial resources:

  • Can a student who unfurls a sign that says BONG HITS 4 JESUS sue his principal for suspending him? 
  • Which farting plush doll is the genuine one?  Does “Pull My Finger Fred®” or “Fartman” have the exclusive right to fart and say “did somebody step on a duck?” and “silent but deadly” when its finger is pulled?
  • Can federal officials be held liable when they retaliate against a property owner who refuses to surrender an easement across his land by cancelling the landowner’s easements across public property, filing false criminal charges against him, harassing the landowner’s guests, and  “inciting a neighbor to ram his truck into the [landowner] while he was on horseback.”

I juxtapose these issues — all presented in cases argued or decided on Monday —  not to disparage the importance of…

Continue Reading ▪ Bong Hits, Pull My Finger Fred, and Remedies for Fifth Amendment Violations

Nollan/Dolan meet Don Corleone.  The Maui News reports on a homegrown version of the Wilkie v. Robbins issue, the case set for argument in the US Supreme Court on March 19, 2007.  The issue is whether government officials can be sued under federal “RICO” anti-racketeering laws.  Wlkie involves the federal Bureau of Land Management’s attempts to wrest an easement from a Wyoming rancher in return for land use permissions, and a report of the Maui case is here. Continue Reading ▪ RICO, Nollan/Dolan, and “Extortion”

After a jury found that an Oregon state agency violated the plaintiff’scontitutional rights when it laid her off, it required Oregon to pay her compensatoryand punitive damages.  After the judgment, Oregon got 40% back.  The Oregon “split recovery” statute provides that for certain punitivedamage awards, the state is entitled to 40% of the award, to be deposited into a victim’s compensation fund, even when the state is the defendant.  The plaintiff claimed, among other things, that the statute effected a taking of her property without just compensation. 

The Ninth Circuit held in Engquist v. Oregon Dep’t of Agriculture (No. 35170, Feb. 8, 2007) that the plaintiff’s interest in a punitive damage award was not “property” protected by the Fifth Amendment’s Takings Clause.  The court’s takings analysis begins on page 1527 of the slip opinion. 

    
Continue Reading ▪ Ninth Circuit: No Fifth Amendment “Property” in Punitive Damage Award

SCOTUSblog posts the brief for the landowner in Wilkie v. Robbins, a land use case to be heard by the US Supreme Court on March 19.  The appeal arose after federal officials used their regulatory power to coerce a Wyoming rancher to give the government an easement without just compensation.  Among other claims, the rancher sued the government officials in their individual capacities for extortion under “RICO” laws.

The Court accepted review of these questions (from the cert petition):

1. Whether government officials acting pursuant to their regulatory authority can be guilty under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et seq., of the predicate act of extortion under color of official right for attempting to obtain property for the sole benefit of the government and, if so, whether that statutory prohibition was clearly established.

2. Whether respondent’s Bivens claim based on the exercise of…

Continue Reading ▪ Property Owner Brief in Land Use Extortion Case

VeglineOne of 2006’s bigger cases was Diamond v. Bd. of Land and Nat. Res., 112 Haw. 161, 145 P.3d 704 (Oct. 24, 2006), involving the location of the “shoreline” for purposes of determining the buildable area on an oceanfront parcel. 

There was news coverage a-plenty, and I posted more than a few comments on the case and on the coverage.  Start here, then read this, this, this, then this post.

I’d bet this case will have lasting impact, even though it was not about the public-private boundary, and only analyzed the location of the “shoreline” under Hawaii’s Coastal Zone Management Act.Continue Reading ▪ 2006 Land Use in Review: Shoreline Tales