Inverse condemnation

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Check out this recent article by lawprof Timothy Mulvaney, “Non-Enforcement Takings.” We’re used to situations in which government regulation results in a takings claim, but Professor Mulvaney asks about cases in which the government’s inaction is argued to result in a taking.

Here’s the abstract:

The non-enforcement of existing property laws is not logically separable from the issue of unfair and unjust state deprivations of property rights at which the Constitution’s Takings Clause takes aim. This Article suggests, therefore, that takings law should police allocations resulting from non-enforcement decisions on the same “fairness and justice” grounds that it polices allocations resulting from decisions to enact and enforce new regulations. Rejecting the extant majority position that state decisions not to enforce existing property laws are categorically immune from takings liability is not to advocate that persons impacted by such decisions should be automatically or even regularly entitled to…

Continue Reading Takings By Government Inaction?

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This fall, I’ll be teaching a new course at the William and Mary Law School in Williamsburg, Virginia.

Here’s the description of Property Rights: Law and Theory (Law 608) from the course catalog:

Property rights and property theory have been essential components of Anglo-American law for centuries, and the protection of the right of private property ownership is one of the foundations on which the U.S. Constitution, the Bill of Rights, and the post-Civil War Amendments are built. In more recent times, however, property law has taken on a new role, and has been viewed differently than in the past, especially in light of the development of environmental law and the evolving concept of public trust.

Property Rights Law and Theory will focus on the history, policy, and, to some extent, the politics of property law, property rights, and related legal topics. We will examine how the right of…

Continue Reading The Paper Chase Is On!

Here’s the latest “Map Act” case from North Carolina, one that touches a bit on the metaphysical side because it gets into the question of whether an ongoing inverse condemnation case in which the N.C. Supreme Court has already ruled that property was taken (although it did not determine the interest taken), prevents the government from instituting a direct condemnation lawsuit to short-circuit the case.

In Dep’t of Transportation v. Stimpson, No. COA17-596 (Mar. 20, 2018), the N.C. Court of Appeals held that the DOT could not institute an eminent domain action to take land that it had already been deemed to have taken — or be taking — in an inverse condemnation action.

The facts of the case are pretty straightforward. North Carolina’s Map Act (as we detailed here) allows the DOT to designate land for future highway acquisition and prohibits development in the interim. The N.C.

Continue Reading DOT Can’t Condemn Land It Has Already Deemed To Be Taking In Inverse Case

For those of you who have not recently attended the ALI-CLE Eminent Domain and Land Valuation Litigation Conference (which we held recently in Charleston, and which we’re planning for in Palm Springs in Jnauary 2019), here’s another sampling of the kind of thing we do.

It’s our New Jersey colleague Anthony Della Pelle talking about the issues in “Orange Barrel Litigation: Temporary Takings Caused by Construction,” in the session he shared with Professor Matthew Holt.

A very informative session, and these clips only give a small taste. More here, from ALI-CLE, including links to the on-demand video sessions we recorded in Charleston.  

It isn’t too early to mark your calendars for Palm Springs, January 24-26, 2019. Stay tuned here for further details as they become available.

Related articles
New Article: Murr And Other “Blurred Lines”
ABA Annual Meeting Programming: Takings, Land Use, Supreme Court,

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Continue Reading Tony Della Pelle On “Orange Barrel Litigation: Temporary Takings Caused By Construction”

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Here’s the printable brochure with the details on the 32nd Annual Land Use Institute in Detroit, April 19-20, 2018. We’ve plugged the program before so we won’t do so again, except to say that you really should attend because (1) it’s a very good program that won’t take much of your time (fly in for the Thursday afternoon program, stay a night, fly home on Friday evening); (2) Detroit is the place to be these days; and (3) it’s one of the best deals in CLE credits, with tuition as low as $400.

2018 Land Use Institute Brochure Detroit 5 2018

Continue Reading April 19-20, 2018: Land Use Institute, Detroit (Printable Brochure)

Is climate change responsible for the severity of California’s recent spate of devastating wildfires? Several big utility companies are being sued or threatened with inverse condemnation for their roles, if any, in the damage. A story today in Climate Liability News (“California Utilities, Climate Change and Wildfires: A Liability Quagmire“) details the response by the utilities, which includes pointing the finger at climate change, petitioning the California PUC for rate hikes, and asking the California legislature for changes to the state’s inverse condemnation law:

The bill is a reaction to a debate over whether San Diego Gas & Electric could pass on the $379 million from the 2007 fires that it couldn’t cover through insurance. The commission denied the utility’s request last November because it said the company caused the fire with improper maintenance of power lines. The commission also said it wouldn’t automatically deny rate increases…

Continue Reading California Wildfires, Inverse Condemnation, And Climate Change

Here’s the Reply Brief in a case we’ve been following, Brott v. United States, No. 17-712, in which the U.S. Supreme Court is being asked to consider whether property owners who sue the federal government for a taking are entitled to both an Article III forum, and to have the issues determined by a jury. We filed an amicus brief in support of the petition.

The Reply responds to the federal government’s brief in opposition which acknowledged the Just Compensation Clause is “self-executing” and that you have a right to “recover just compensation,” but before you can actually recover compensation, Congress must deign to recognize your Constitutional right by agreeing to be sued. And if Congress can withhold its consent to pay compensation, it surely (in the Government’s view) can dictate the terms on which an owner can recover compensation.And if that means the Court of Federal Claims and …

Continue Reading SCOTUS Reply: Determining Compensation For Taking A Private Right Is A Judicial Function

If the headline of this post throws you off a bit, not to worry: it was designed to. Because the situation in the North Carolina Supreme Court’s recent opinion in Wilkie v. City of Boiling Spring Lakes, No. 44PA17 (Mar. 2, 2018), turned the usual arguments on their heads.

In condemnation cases, if the owner objects on the grounds that is being accomplished for a private — and not public — use or benefit, the remedy they seek is to stop the taking or unwind it. We can’t recall a case in which an owner sought compensation for what was claimed to be private taking. The question in the Wilkie case was whether that same approach applies in inverse condemnation cases — those in which the owner alleges that some government act other than an affirmative exercise of the eminent domain power has taken private property.

In that case…

Continue Reading When Is A Taking For Private Benefit Compensable? When It’s A Statutory Inverse Condemnation In North Carolina

The last time the U.S. Supreme Court faced Williamson County in a merits case, the property owners made the mistake of not challenging that case’s “state procedures” requirement directly. An exchange with Justice O’Connor went like this; from the transcript:

Justice O’Connor: And you haven’t asked us to revisit that Williamson County case, have you?

Mr. Utrecht: We have not asked that this Court reconsider the decision in Williamson County.

Justice O’Connor: Maybe you should have.

Ouch.

But fool me once, shame on you; fool me twice…we won’t get fooled again!

This time, therefore, no mistake: the owners raised a challenge to Williamson County squarely, and as a result, there may now be a light at the end of the very bizarre ripeness tunnel that has mostly kept federal courts from reviewing claims that the U.S. Constitution has been violated.

This morning, the Court agreed to hear a case…

Continue Reading New Cert Grant: Overrule Williamson County’s Exhaustion Of State Procedures Requirement?

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Here’s an article (“Murr v. Wisconsin: The Supreme Court Rewrites Property Rules in Multiple-Parcel Regulatory Takings Cases“), which we authored along with a colleague, published in February 2018’s Zoning and Planning Law Report, about the U.S. Supreme Court’s decision in Murr v. Wisconsin, the case about the “larger parcel” in regulatory takings.

As you might predict, we concluded that the Murr majority’s analysis was vague, unsatisfying, and generally not helpful. Strong letter to follow!

Here’s a passage from the Introduction:

The U.S. Supreme Court’s 5-3 long-anticipated ruling in Murr v. Wisconsin, expected to resolve the “larger parcel” or “denominator” issue in regulatory takings cases, has instead created a test that neither property owners, lawyers, nor government officials can understand or rely on.

The majority opinion, authored by Justice Anthony Kennedy, addressed a long-standing question in regulatory takings law: when a claimant who owns more…

Continue Reading New Article: Murr And Other “Blurred Lines”