Inverse condemnation

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Some states (mostly in the Midwest, to our knowledge) don’t really recognize inverse condemnation” claims, at least as we in other jurisdictions use that term. Instead of recognizing a direct cause of action for compensation and damages when government has taken property physically or by regulation without first instituting an eminent domain case, these jurisdictions require a property owner to sue in mandamus, to compel the government to formally condemn the property and pay. Minnesota is one of those jurisdictions.

Property owners better follow that mandamus process strictly, at least according to the Eighth Circuit in American Family Ins. v. City of Minneapolis, No. 15-3216 (Sep. 6, 2016). Wait, you say, what’s this — an inverse condemnation/takings case in federal court … how can that be?

The case — a claim by insurance companies on behalf of their insureds after the city’s water main broke and flooded a condo —…

Continue Reading Eighth Circuit: Mandamus By Any Other Name … Still Mandamus

In the course of negotiating a successful hostage situation with tear gas, flash-bang grenades, and a bulldozer, the Spartanville, SC police department damaged a convenience store. So badly that the owners “were later asked by the City to tear it down as it did not comply with ordinances regarding vacant commercial buildings.” After the owners said no, the City demolished it. 

In Carolina Conveniece Stores, Inc. v. City of Spartanburg, No. 27663 (Aug. 31, 2016), the South Carolina Supreme Court held that this wasn’t an inverse condemnation. The court didn’t provide any substantial analysis, holding merely that the South Carolina Constitution does not contemplate that damage occasioned to private property by law enforcement in the course of performing their duties constitute a taking.” Slip op, at 4-5. Why? Because “the framers of the Constitution did not intend that law enforcement operate under the fear that their actions could lead to…

Continue Reading SC: Damage Caused By SWAT Isn’t A Taking

Entry statutes are in the news lately. As we reported here for example, the California Supreme Court recently saved California’s entry statute from unconstitutionality by implying a requirement for a jury trial (and other eminent domain protections) when the entries which the condemnor seeks to undertake constitute takings.

In that case, the party seeking entry proposed to bore and fill holes on the property. Which meant that the entries were undoubtedly permanent physical appropriations. This triggered the requirement that the entry conform to the eminent domain process, such as having a jury determine just compensation. Thus, the court understood that in the absence of its reformation of the statute (i.e., rewriting it), the entry process as applied would be unconstitutional. We’ll save for another post our commentary on the California Supreme Court’s approach.    

But such details didn’t concern the North Dakota Supreme Court in its opinion applying that…

Continue Reading ND: Entry Statutes Are Not Takings, Even If There’s A Physical Invasion

To state a claim for inverse condemnation in Nevada, the property owner must allege that the government was “substantially involved” in activities that caused the taking of the property.

In Fritz v. Washoe County, No. 67660 (Aug. 4, 2016), the Nevada Supreme Court addressed what constitutes substantial involvement. Does it require actual physical “involvement” in the actions which resulted in flooding, or is the government doing governmental things like approving applications enough? In the end, the court set out a test somewhere in between those two poles. 

This is a flood case where the property owners alleged that the County approved plat maps and managed the drainage system which ultimately resulted in their property being inundated. As part of that process, the County accepted dedications, and worked with the Nevada DOT to direct where water coming down a mountain would flow. The County asserted the owners didn’t have standing…

Continue Reading Nevada Clarifies Inverse Condemnation And What Is “Substantial Government Involvement”

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We’re experiencing the madness that is the ABA Annual Meeting — this time in San Francisco — hanging with colleagues from the State and Local Government Law Section (where we’re slated to be the Chair-Elect this year), and at the Council of Appellate Lawyers. These meetings are a lot of … meetings .. but there’s also a healthy dose of CLE programming, some of it focused on things like eminent domain and land use, and other topics near and dear. 

Pictured above is our friend and colleague from the Northwest, Jamila Johnson, who gave a spirited defense of the Fifth Amendment and property rights in her session on energy corridors. We were discussing the pros and cons of “quick take” statutes, and to counter the assertion that these things allow for efficient, convenient, and cost-effective government projects, Jamila responded (and we’re recalling this from memory here), “the government has…

Continue Reading Eminent Domain Programming At The ABA Annual Meeting

Last year, we posted about the Brigham-Kanner Conference, the annual meeting at William and Mary Law School where we talk all things property rights and award the Brigham-Kanner Property Rights Prize. (By the way, this year’s conference will be held in The Hague, The Netherlands in October. But more on that soon, in a separate post.)

What we are posting today is a follow-up about Mike Berger’s presentation at the 2015 conference. His article — then only in draft form — is a critique of the theories of the 2015 Brigham-Kanner prizewinner, Harvard lawprof Joseph Singer. Recall that Berger was presented with the prize in 2014 — the first and thus far only practitioner to receive the award — which makes this article even more important.  

Berger’s article is now finalized, and has been published by the Brigham-Kanner Property Rights Conference Journal: “Property, Democracy, & …

Continue Reading Must Read: Michael Berger On “Property, Democracy, & The Constitution”

Another flooding case, this time from the Indiana Court of Appeals.

In Birge v. Town of Linden, No. 54A01-1509-PL-1495 (July 25, 2016), the court considered a pure legal question (the issue was up on appeal after the trial court dismissed for failure to state a claim): does governmental immunity under the state tort claims act apply to inverse condemnation cases? The court held no, “to the extent the trial court concluded that immunity under the ITCA would bar the Birges’ claim for inverse condemnation, the trial court erred.” Slip op. at 10. The town may be entitled to immunity for flooding which it was alleged to have caused, but that immunity “will extend only to tort claims brought under the ITCA.” Slip op. at 11.

More about the case in this story: “Farmers win reversal in drainage appeal against town” from the Indiana Lawyer. 

Birge v. …

Continue Reading Indiana App: No Gov’t Immunity For Inverse Condemnation

Today, in a case we’ve been following (because we filed a brief in support of the property owner), the California Supreme Court in a unanimous opinion essentially rewrote California’s precondemnation entry statute to give the government a pass.

The court assumed that entries which exceed the relatively minor entries contemplated by its prior decisions are takings (they are physical occupations, after all), but held that the burden is on the landowner to sue for inverse condemnation, and that the California Constitution doesn’t require a predeprivation process or payment of just compensation. 

The vibe of the government’s argument has always been that were the California Supreme Court to affirm the ruling by the Court of Appeals — that as takings, these entries themselves are subject to the protections of the eminent domain process — the sky was going to fall. It would just be so bloody inconvenient for condemnors.

Continue Reading California Supreme Court Rewrites Eminent Domain Entry Statutes To Give Government A Free Pass

We’re not going to go into much detail about the Court of Federal Claims’ ruling in Katzin v. United States, No. 12-384L (July 15, 2016): (1) it’s long (44 single-spaced pages), (2) it’s a post-trial ruling and not from an appellate court, and (3) we’re busy today.

But we still recommend you read it, eventually, because it looks like a fascinating case. Here’s the CFC’s ruling, to start:

This post-trial opinion addresses claims by plaintiffs Dr. Richard Lewis Katzin (“Dr. Katzin”), Mary Beth Katzin Simon (“Ms. Katzin”), and Rose Marie Kjeldsen Winters (“Ms. Winters”) that the United States (the “government”) interfered with their ownership rights to a parcel of land (“Parcel 4”) which overlooks the Atlantic Ocean on Culebra Island, Puerto Rico, and that the interference effected a taking in contravention of the Fifth Amendment.

. . . .

This case raises factual questions of property ownership that…

Continue Reading Pirate Of The Carribean: Govt Claiming Ownership And Clouding Title Is A Physical Taking

We were all set to post our thoughts on the Illinois Supreme Court’s recent opinion in Hampton v. Metropolitan Water Reclamation District of Greater Chicago, No. 119861 (July 8, 2016), when we were beaten to the punch by Erin Baker, an associate of our colleague (and fellow U. Hawaii law alum) Julie Tappendorf. They posted “Illinois Supreme Court Addresses Takings Clause in Temporary Flooding Case” on their firm’s Municipal Minute blog.

She has all the details, and we recommend you read the post.

Short story is that land was flooded temporarily, allegedly by the Water District to avoid flooding at O’Hare airport, and the plaintiffs brought a claim for a taking under the Illinois Constitution. Since 1948, Illinois has had a judicially-created rule that temporary flooding cannot be a taking. But as we all know, the U.S. Supreme Court recently held that just because…

Continue Reading Illinois Supreme Court: Temporary Flooding Can Be A Taking, But There’s No Bright Lines In Flood Takings Cases