Inverse condemnation

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Here’s the property owners’ brief in opposition to the DOT’s request for the North Carolina Supreme Court to review the court of appeals’ opinion in Kirby v. N.C. Dep’t of Transportation, No. OA14-184 (Feb. 17, 2015).

The court concluded that the Map Act — which gives the DOT the ability to designate hundreds of parcels for future highway use and prevent their development in the meantime for the avowed purpose of keeping the future acquisition price low — effected a taking. The court remanded the case for a calculation of the compensation owed to each property owner.    

The DOT’s brief argues the Map Act is just a police power regulation, and to force it to actually buy the properties now would make it, you know, just too expensive to build highways. The property owners’ brief responds:

While the NCDOT certainly has police powers to regulate its right of way…

Continue Reading Property Owners’ Brief In NC “Map Act” Takings Case: Depressing Acquisition Price Precondemnation Is An Exercise Of The Eminent Domain Power

Earlier, we posted the cert petition in Hillcrest Property, LLP v. Pasco County, No. 12-846 (cert. petition filed Jan. 15, 2015), which asks the Supreme Court to review the Eleventh Circuit’s decision throwing out Hillcrest’s facial substantive due process challenge to the county’s “Right of Way Preservation Ordinance.” The ordinance allows the county to land bank for future road corridors by means of an exaction that doesn’t come anywhere near to passing muster under Nollan–Dolan–Koontz. 

Although the District Court held the ordinance unconstitutional and is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation,” the Eleventh Circuit concluded that the mere enactment of the ordinance started the four-year statute of limitations clock running on a facial challenge, and that Hillcrest had waited too long to file its complaint. 

Hillcrest’s petition asks whether a facial claim is even subject to the statute…

Continue Reading On Facial Challenges, Exactions, Standing, And Statutes Of Limitations: Final Cert Briefs In SCOTUS Substantive Due Process Case

Williamson County gives everyone grief, and if you needed any more proof, here it is.  

In A Forever Recovery, Inc. v. Township of Pennfield, No. 13-2657 (Apr. 2, 2015), an unpublished opinion from the Sixth Circuit, the court upheld the district court’s award of attorneys’ fees and costs to a property owner who brought a takings claim in Michigan state court, only to see the defendant, the Township of Pennfield, remove the case to federal court and then move to dismiss the claim six days later, asserting it was not ripe under Williamson County. 

The district court rightly remanded the case back to state court, and held the Township liable for fees and costs under the removal statute which shifts fees in cases where the defendant doesn’t have an “objectively reasonable basis for seeking removal.” The court held that the Township removed only to delay the case…

Continue Reading 6th Cir Schadenfreude Alert: Municipality Liable For Fees And Costs For Removing Takings Claim From State Court

What we learned from the Federal Circuit’s opinion in Shinnecock Indian Nation v. United States, No.14-5015 (Apr. 7, 2015):

  • A $1,105,000,000 (that’s $1.1 billion and change) is the Nation’s claim in the U.S. Court of Federal Claims for what the Hamptons are worth. Slip op. at 3. Sounds about right. 
  • The Nation sued the State of New York in U.S. District Court, alleging that in the mid-19th Century, the State “enacted legislation allowing thousands of acres of the Nation’s land to be wrongfully conveyed to the government of the Town of Southampton.” Slip op. at 2.
  • USDC: case dismissed (laches, you know). Appeal to the Second Circuit remains pending.
  • Off to the CFC they went, seeking the abovementioned $1.1 billion, claiming the federal government violated its trust obligations when it failed to provide the Nation with a remedy for the misappropriation of its land (at New York’s hands).

…
Continue Reading Fed Cir: Claim That U.S. District Court Judicially Took Property Can’t Be Brought In The Claims Court

It’s not often that we say a law review article is a “must-read.” But this one definitely is, especially for all you regulatory takings mavens: David L. Callies, Through a Glass Clearly: Predicting the Future in Land Use Takings Law, 54 Washburn L. Rev. 43 (2014). A pdf of the article is posted here. 

From the Introduction:

The subject of takings—the government taking of an interest in real property, either through eminent domain or through the exercise of the police power—has been the subject of continuous litigation for nearly a century. The past ten years have been particularly fruitful, as litigants struggle with the meaning and extent of the Fifth Amendment’s Public Use Clause and the extent to which the overzealous exercise of the police power can sufficiently deprive a landowner of rights in property so that the property has been “taken” by regulation, ever since Justice Holmes…

Continue Reading New Law Review Article Worth Reading: “Through a Glass Clearly: Predicting the Future in Land Use Takings Law”

Here’s the letter request which we sent today to the California Court of Appeal, Second Division, asking the court to publish its recent opinion in Brost v. City of Santa Barbara, No. B246153 (Mar. 25, 2015). In our post about the case, we wrote “we hope there’s a motion to publish and that the court grants it. This case should be citeable as precedent.”

But as a colleague reminded us, a request to publish an opinion isn’t limited to just the parties to the case, and the California Rules of Court provide that “any person” may ask the court to publish an unpublished opinion, and we certainly fit that description. So today, we — along with our colleagues at Owners’ Counsel of America — wrote to the court that the Brost decision is significant (among other reasons) because it correctly applies the futility exception to takings ripeness, and…

Continue Reading Recent California Court Of Appeal Regulatory Takings Opinion Should Be Published

In Kirby v North Carolina Dep’t of Transportation, No. COA14-184 (Feb. 17, 2015), the North Carolina held that state’s “Map Act,” which gives the DOT the ability to designate property for future highway use and prevent its development in the meantime, was a taking. There was great shouting and gnashing of teeth that making the DOT actually pay just compensation would crash the system and cost the state a lot of money, so we were not terribly surprised when the DOT recently filed this Notice of Appeal and Petition for Review posing three questions:

1. Did the Court of Appeals erroneously hold that the Map Act, N.C.G.S. § 136-44.50 et seq., empowered NCDOT to exercise the power of eminent domain and that NCDOT exercised that power and took Plaintiffs’ property rights when it recorded protected corridor maps?

2. Did the Court of Appeals erroneously remand this matter for…

Continue Reading State Appeals NC “Map Act” Takings Case

Brost v. City of Santa Barbara, No. B246153 (Mar. 25, 2015) is an unpublished opinion, but (1) we hope the property owners ask the court to publish it, and (2) even if it remains unpublished, it is worth reading, because the court correctly applies both Williamson County‘s futility exception, and the “background principles” exception to a Lucas “wipeout” regulatory taking. 

It’s a longer opinion, but here’s the short story: the plaintiffs’ properties are in a part of the city that is an active landslide area. The city adopted an ordinance that prohibited new construction in the area. The plaintiffs’ homes were destroyed in a wildfire (not a landslide, mind you), and the city refused to allow them to rebuild and refused to amend the ordinance. The trial court held that the total prohibition was a regulatory taking, and “[t]o avoid having to compensate plaintiffs for a permanent taking, …

Continue Reading Cal App (Unpub): Temporary Prohibition On Rebuilding In A Landslide Zone Is A Taking

The Wisconsin Court of Appeals’ decision in Somers USA, LLC v. Wisconsin Dep’t of Transportation, No. 2014AP1092 (Mar. 25, 2015), is the second case we’re posting today that has us asking — just what was the government thinking?

This kerfuffle resulted from the DOT trying to take advantage of Somers’ scrivener’s error, made when Somers recorded a map (known as a “CSM”) that stated it was “dedicating” some of its property for a future state highway, rather than merely “reserving” it for highway use. No one disputed that this was an error, and no one doubted that Somers had not intended to donate its property for the highway. 

But the DOT said “thank you very much,” and it went ahead and built its highway without condemning the land or paying compensation.

Somers’ inverse condemnation claim followed, as you might expect. The DOT conceded that the “dedication” language was “no doubt…

Continue Reading What Were They Thinking, Part II: DOT Can’t Take Advantage Of “Scrivener’s Error” To Avoid Eminent Domain

Here’s the first of two cases we’re going to post today, both with the same theme — what was the government thinking?

The facts in Irwin v. City of Minot, No. 20140217 (Mar. 24, 2015), are similar to cases we’ve covered before, the government’s claim that it took property during the course of an emergency as a function of its police power, and therefore it cannot be liable for a taking (see this post — about a fire — and this post — shoreline protection — for examples). In this case is was flooding.

The City did the right thing to combat the flood. It hired contractors who used clay from nearby privately-owned parcels to build dikes. They contracted with the Irwins’ neighbors to remove 20,000 cubic yards of their clay, for which the city paid $.65 per yard. But for some reason, they didn’t bother asking the Irwins: “The City…

Continue Reading What Were They Thinking, Part I: City Stealing Dirt Is A Taking