Inverse condemnation

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Our upcoming American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference in Charleston, South Carolina has SOLD OUT our in-person registrations. 

We will have a record attendance (with over 100 first-time attendees) and the conference hotel has informed us that we can fit no more people in the meeting rooms. We cannot remember this happening before, but it tells us that we will have an energizing and exciting conference. 

Thank you to all of you who signed up and are coming or joining in online for the webcast — we’ll see you soon at the “four corners of the law.”

And if you delayed too long in registering, please don’t despair. You can still attend from home or the office because ALI has set up a live webcast of the sessions. Go here for more on how to sign up to attend by webcast.

And stay…

Continue Reading ALI-CLE Eminent Domain & Land Valuation Conference – In-Person Registration SOLD OUT (But You Can Still Join By Live Webcast)

Here’s the first post-Murr cert petition (as far as we can tell), in a case we’ve been following. As we wrote in “The First Post-Murr Case? Fourth Circuit: No Taking Because Anti-Development Merger Regulations Actually Make Property Developable,” the Fourth Circuit concluded:

[T]he County’s regulations were run-of-the-mill zoning/land use ordinances, and thus were not a taking, nor violations of the related substantive due process and equal protection claims. Because the County had no obligation to extend sewer services to the plaintiff’s parcels, he had no property interest that was taken by the development prohibition. 

The court rejected the owner’s attempt to distinguish Murr. He pointed out that he purchased his property before the restrictive regulations were adopted, and not afterwards like the Murr children. See Murr, 137 S. Ct. at 1945 (“the “expectations . . . an acquirer of land must acknowledge legitimate restrictions affecting…

Continue Reading First Post-Murr Cert Petition

What to make of this? A blog aimed at condemning authorities, with advice on how to avoid a claim for precondemnation damages. Okay, nothing wrong with that. Condemnors deserve good legal counsel as much as other parties. Indeed, having inexperienced counsel for the condemnor often makes resolving cases harder than it should be.

But check this out, a recent post entitled “Practice Tip to Avoid the Potential for Precondemnation Damages,” which notes (in its entirety):

This is a practice tip to avoid the potential for precondemnation damages.  In all project documents, refer to future land acquisitions in noncommittal, tentative, conditional language.

Examples:

  • “The proposed acquisition”
  • “The acquisition under staff consideration”
  • “The recommended acquisition”
  • “No decision has been made to acquire the property”
  • “Only the governing board can make the decision to acquire the property by eminent domain”

Project maps showing required acquisitions should be referred…

Continue Reading Protip For Condemnors: For Planned Projects, Play Hide The Ball: “Project maps showing required acquisitions should be referred to as ‘studies,’” And “[b]oth in reality and in appearance, advise staff not to leave a paper trail”

35th Annual Advanced Course

Logo_150pxEminent Domain and
Land Valuation Litigation

Live Program | Video Webcast | Video Webcast Segments

Thursday – Saturday, January 25 – 27, 2018
Francis Marion Hotel | Charleston, SC

Do not miss this popular conference! Intended for all eminent domain and land use practitioners, both experienced and those new to the practice. You can even customize the unique curriculum to work for you: freely go between the Advanced and 101 tracks, with additional tracks for Practice and Substantive law.

With a faculty of national experts who offer both condemnor and property owner perspectives, this is the big program, and the one you don’t want to miss.

Recognized and experienced professionals representing the diverse stakeholders in these cases will discuss the issues hitting your desk today or in the future, including:

  • Overlap of condemnation and regulatory takings: Murr and other blurred lines
  • Takings and damaging by flood

…
Continue Reading ALI-CLE Eminent Domain & Land Valuation Conference – There’s Still Time To Join Us In Charleston

A recent report in Honolulu Civil Beat asks the question: “Why Isn’t Honolulu Helping Businesses Hurt By Rail Construction?” (The Civil Beat editorial board asks the same question.)

According to the report:

Two years ago, the Honolulu City Council created a fund to help businesses hurt by construction of the 20-mile long rail project. But there was a hitch: the council never appropriated any money for it.

Then last April, the council put a line item in the budget for fiscal year 2018, which began July 1 and ends June 30, offering $2 million in property tax breaks to businesses suffering losses from work on the rail line.

With five months left to go in the fiscal year and no effort to distribute those tax breaks, that offer is looking like an empty promise.

The Civil Beat story continues with reports of failing businesses, the Honolulu Authority for Rapid…

Continue Reading “Why Isn’t Honolulu Helping Businesses Hurt By Rail Construction?” (Because It Doesn’t Want To, And No One Is Making It)

Here’s the amici brief filed earlier this week in Sammons v. United States, No. 17-795, a case we’ve been following. Here’s the cert petition. 

The issue in this case is the same as in two cases already pending in the Supreme Court, the first a patent case argued in December, and the other a rails-to-trails case in which the cert petition is pending (we filed an amicus brief in the latter case).

Now, we’ve joined a brief in Sammons which argues that like these two cases, this one presents the same issues:  

This petition for certiorari concerns essentially the same issues raised in Oil States and Brott.

In Oil States this Court will decide whether an adjudication before an Article I tribunal “violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.” In Oil States a non-Article III board invalidated an…

Continue Reading New Amici Brief: Of Juries And Article III Courts – Required In Takings Cases?

One word is conspicuously absent from the Federal Circuit’s opinion in Alpine PCS, Inc. v. United States, No. 17-1029 (Jan. 2, 2017): “exhaustion.”

We all know that exhaustion of administrative remedies isn’t usually required before bringing a constitutional takings claim, but make no mistake — despite the absence of the word in the opinion, the rationale of the court was that the property owner could not bring a takings claim under the Tucker Act in the Court of Federal Claims because it had not exhausted its administrative remedies. 

The property owner asserted that telecommunications licenses it possessed had been taken, and the federal government breached a contract, when the licenses were cancelled after it didn’t make required payments. The CFC dismissed the action for lack of jurisdiction, concluding the federal Communications Act provided a comprehensive statutory scheme under which Alpine could have raised its contract claim, thus depriving the…

Continue Reading Williamson County, Federalized: No CFC Tucker Act Jurisdiction Because Owner Didn’t Exhaust Agency Procedures

Back in October, the William and Mary Law School awarded U. Hawaii lawprof David Callies the Brigham-Kanner Prize at a two-day conference in Williamsburg. Our summary of the conference is posted here.

We spoke at the conference, at the first panel entitled “The Future of Land Regulation and a Tribute to David Callies,” along with Professors Shelly Saxer and Jim Ely, and past B-K Prize winner Michael Berger. Of course, Professor Callies also delivered his opening remarks.

The law school has posted the audio from that session, which you can listen to here, or stream it above (via Soundcloud). 

We’re in the process of transforming our remarks into a short essay, to be submitted to the Brigham-Kanner Property Conference Journal if you want to wait for the expanded version. (Feb. 13, 2018 update: here’s the draft article.)Continue Reading Brigham-Kanner Podcast: “The Future Of Land Regulations And A Tribute To David Callies”

In Cappel v. Nebraska Dep’t of Natural Resources, No. S-16-1037 (Dec. 22, 2017), the Nebraska Supreme Court concluded the Department’s notices to Cappel pursuant to an interstate water compact which closed off his land’s ability to draw surface water from the Republican River for irrigating his crops was neither a physical nor regulatory taking. 

As you might expect, the central takings question which the court addressed was whether Cappel’s water allocations were “property.” The court held that because the closing notice was made pursuant to the Department’s obligations under the compact, “the water rights at issue were not a compensable property interest and the Cappels’ physical taking argument must fail.” Slip op. at 454. The court also dispensed with the regulatory takings claim by applying the Penn Central test. And you know what that means. 

Here’s the money quote, which reveals the court’s essential problem with the takings claims:…

Continue Reading Nebraska: No “Property” In Water Rights Subject To Interstate Compact

The facts in Bellwether Properties, LLC v. Duke Energy Indiana, Inc., No. 53S04-1703-CT-121 (Dec. 20, 2017), are not all that complex and the result is pretty straightforward: the complaint did not show on its face when the plaintiff had knowledge that new rules caused an existing utility easement to expand in size, and thus dismissal under the statute of limitations was incorrect. But buried within the court’s short opinion is an interesting issue.  

More than 50 years ago, Bellwether’s predecessor-in-title granted a ten-foot-wide utility easement to Duke’s predecessor. Flash forward to 2002 when the Indiana Utility Regulation Commission adopted the latest version of the National Electric Safety Code, which established new safety guidelines for how close utility lines could be to structures. According to Bellwether, these new safety standards required a 23-foot-wide easement.

It brought an inverse condemnation claim in Indiana court in 2015. Duke argued that the…

Continue Reading Indiana Inverse Condemnation: No Statute Of Limitations Dismissal Unless Complaint Shows When Plaintiff Knew Of Claim