Inverse condemnation

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What will they think of next?

Those of us who know inverse condemnation understand that because the cause of action is based in the constitution, that the usual tort concepts such as negligence and comparative fault aren’t part of the equation. Generally speaking, under California law, liability is triggered when government conduct is a “substantial cause” of the damage. 

The California Assembly wants to change all that. It has introduced Assembly Bill No. 1402 (Feb. 27, 2015), which would, in the bill’s words, “apply the doctrine of comparative fault to inverse condemnation actions and would require a court or arbitrator to reduce the compensation paid to a plaintiff in an inverse condemnation proceeding in direct proportion to his or her percentage of fault, if any, in the damaging of property that constitutes a taking.”

Bad idea, and certainly not one that merely codifies “existing law” as the second sentence of …

Continue Reading California Wants To Import “Comparative Fault” to Inverse Condemnation

Thankfully, the only “Tiki Island” we have in Hawaii is a miniature golf course. Because the name “tiki” should be reserved for such things, or for kitschy bars, or Trader Vic-knockoffs.

And please, honest-to-goodness real municipalities should never be named Tiki Island. No matter how nice they appear to be. Just no.

(Martin Denny, by the way, gets a pass – rock on, Mr. Denny.)

But there it is, the Village of Tiki Island, Texas, population 968, “a waterfront community in Galveston County consisting of about 960 homes, with approximately 40% full-time occupants, and 60% part-time occupants.” 

Something tells us that TI, TX’s smallish population and the resident-to-part-timers ratio had something to do with the fact that in 2014, the Village adopted an ordinance prohibiting the short-term rental of residences, an activity that apparently had been ongoing for some time…

Continue Reading Tiki Island’s Prohibition Of Vacation Rentals A Penn-Central Taking (For Now)

With rare exception, we don’t cover unpublished, nonprecedential decisions. But we’re posting Fuller v. United States, No. 2014-5117 (Mar. 10, 2015), an unpublished opinion from the Federal Circuit, because it reminded us of a presentation by Jim Burling at the recent ALI-CLE Eminent Domain conference, “Novel Takings Theories: Testing the Boundaries of Property Rights Claims.” 

Jim’s presentation didn’t focus on cases quite like this one (which was really borderline), where Dr. Fuller, a neurosurgeon and pro se litigant, argued that it was a taking when a dissatisfied patient of his, a marine biologist who was employed by the National Marine Fisheries Service of NOAA (an agency of the Department of Commerce), posted a comment on “runningforums.com” pointing out Dr. Fuller’s use of hyaluronidase, which noted that it posed a “remote risk” of transmitting mad cow disease. Doc Fuller sued in California state courts for defamation, and…

Continue Reading Fed Cir (Nonprecedential): A Federal Employee Posting On The Internet From A Gov’t Computer Isn’t A Taking

Check out State ex rel. Sunset Estate Properties, LLC v. Village of Lodi, No. 2013-1856 (Mar. 10, 2015),  a case in which the Ohio Supreme Court held that a local zoning ordinance was unconstitutional on its face.

The Village’s zoning code, adopted in 1987, banned manufactured home (trailer) parks. Of course, the ordinance could not ban those parks already in existence, which were allowed as nonconforming uses. Sunset Estates was one such park.

The ordinance also provided that if a nonconforming use was discontinued for six months, that was evidence of the owner’s intent to abandon the nonconforming use:

Whenever a nonconforming use has been discontinued for a period of six months or more, such discontinuance shall be considered conclusive evidence of an intention to legally abandon the nonconforming use. At the end of the six-month period of abandonment, the nonconforming use shall not be re-established, and any further…

Continue Reading A Zoning Due Process Violation From The Land Of Euclid: Owner Can’t Lose Nonconforming Use By Actions Of Tenant

Here’s the amici brief of the National Association of Home Builders, the National Association of Realtors, the National Association of Independent Business Small Business Legal Center, and others in the case we’ve been following out of the federal courts in Florida about a county’s “right of way preservation” ordinance (which is somewhat similar, but perhaps worse in some ways than North Carolina’s Map Act).

As you might recall, the federal district court held that the ordinance — which allows the county to land bank for future road corridors by means of an exaction is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation” — violated Hillcrest’s due process rights. Yes, the Takings Clause was part of the mix in that it was Hillcrest’s right to just compensation that the county wrongfully interfered with (see Nollan, Dolan, and Koontz), but this was…

Continue Reading Amici Brief: Didn’t Lingle Tell Us That Due Process And Takings Are Distinct Claims?

This one from the Federal Circuit is a must read, particularly for those interested in takings claims where the federal government is involved. But even if that doesn’t describe you, we think you should review Ministero Roca Solida v. United States, No. 14-5058 (Feb. 26, 2015), because the issues raised — especially in Judge Taranto’s concurring opinion — could have impact far beyond the narrow confines of the case.

The core issue is one we’ve dealt with extensively before, and which the Supreme Court addressed in United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011), the effect of 28 U.S.C. § 1500 when the federal government is sued both in the Court of Federal Claims and in a District Court. That statute deprives the CFC of subject matter jurisdiction when there is a case pending in “any other court” against the United States which involves “any claim for or…

Continue Reading Tohono’s “Jurisdictional Ambush” And The Tucker Act Shuffle In The Federal Circuit

Worth reading: “Legislative Exactions after Koontz v. St. Johns River Management District,” an article by colleagues Luke Wake and Jarod Bona, recently posted to SSRN. Here’s the abstract:

Decided in June, 2013, Koontz v. St. Johns River Management District settled a long-running debate among scholars as to whether the nexus test — first pronounced in Nollan v. California Coastal Commission — applies in review of monetary exactions. In the preceding years, the lower courts had largely resolved this question in the government’s favor — limiting Nollan to its facts, and holding the nexus test inapplicable if a challenged permit requires the applicant to pay or expend money as a condition of permit approval. Further, the trend among the lower courts held the nexus test inapplicable in review of legislatively imposed exactions, regardless of whether the contested condition requires a dedication of real property or money.

Without question…

Continue Reading New Article: “Legislative Exactions after Koontz v. St. Johns River Management District”

Here’s the latest in an issue we’ve been following out of North Carolina.

In Kirby v North Carolina Dep’t of Transportation, No. COA14-184 (Feb. 17, 2015), the N.C. Court of Appeals not only held that the property owners’ claims were ripe, but that the Map Act — which gives the DOT the ability to designate property for future highway use and prevent its development in the meantime — effected a taking. The court reversed the trial court’s dismissal and sent the case back down for a calculation of the compensation owed to each property owner. A big win for the property owners.  

We’ve set out the background here and here, but the short story is that the N.C. legislature adopted a statute which allows the DOT to designate future highway corridors, but doesn’t require it to actually acquire the property. Once the DOT files a map showing…

Continue Reading NC App: “Map Act,” Which Land Banks Property For Future Highways, Is A Taking

Yesterday, we were able to attend the Ninth Circuit oral arguments in a case which we posted on last month, Rancho de Calistoga v. City of Calistoga, No. 12-17749.

In that case, the U.S. District Court for the Northern District of California dismissed the complaint filed by the owner of a wine country mobile home park subject to a municipal rent control ordinance which alleged that the city’s hearing officer did not allow a fair return. The court concluded that the complaint did not adequately plead the claims for relief under a regulatory takings, private takings, due process, or equal protection theory.  

We filed an amicus brief in the case on behalf of the Western Manufactured Housing Communities Association. 

Much of the panel’s time was spent questioning the park owner’s counsel about whether the case was even ripe under Williamson County. Counsel responded that it…

Continue Reading 9th Circuit Oral Arguments: Reg Takings, Private Takings, Due Process … And Williamson County

The Nevada Supreme Court’s opinion in Buzz Stew, LLC v. City of North Las Vegas, No. 15-03100 (Jan. 29, 2015) was the second time the court had issued a published ruling in the case, the first being Buzz Stew, LLC v. City of North Las Vegas, 181 P.3d 670 (Nev. 2008), in which it held that “the just compensation provision requires compensating a landowner for a lesser invasion of his property rights when a would-be condemnor acts improperly following its announcement of intent to condemn, such as by unreasonably delaying condemnation of the property.” The court remanded the case for a jury determination of whether the city unreasonably delayed condemnation.  

The jury didn’t think so, which resulted in this second appeal and the second opinion. Unfortunately, this round didn’t turn out as well for the property owner as the first, and the Supreme Court affirmed the jury’s…

Continue Reading Nevada: That Contract For Future Condemnation Proceeds Isn’t Property