Inverse condemnation

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The wheels of justice may grind slowly, but they do grind. Yesterday, the Ninth Circuit granted a motion we filed back in June 2013, and permitted us to file this amicus brief on behalf of the Western Manufactured Housing Communities Association in a case that is scheduled to be argued in mid-February 2015, Rancho de Calistoga v. City of Calistoga, No. 12-17749.  

The case is a federal court challenge to a California wine-country municipality‘s decision to deny a rent increase for a mobilehome park subject to the city’s rent control ordinance. The complaint alleged that the city’s failure to allow the ground lease rent to increase to $624 violated the park owner’s rights under the takings, due process, and equal protection clauses. The District Court eventually dismissed the complaint for failure to state a claim for relief under Rule 12(b)(6), because, among other things, the park …

Continue Reading 9th Circuit Amicus Brief: How To State A Valid Claim After Lingle – Regulatory Taking, Private Taking, Or Due Process?

Sorrentino v. Godinez, No. 13-3421 (Jan. 23, 2015) was a lawsuit by prisoners complaining that several items which they purchased from the prison commisary — a fan and a typewriter — were later declared by the warden to be prohibited contraband.

Under the new rules, their property was “removed,” and the prisoners given options for what they wanted done with the items: destroy them, store them, or send them to someone on the outside at the prison’s expense. They didn’t like these options and instead sued, claiming a taking, among other things. The District Court dismissed with prejudice.

The Seventh Circuit affirmed the result, concluding that the plaintiffs’ failure to avail themselves of the available remedy under Illinois law for obtaining compensation in the Illinois Court of Claims for a physical taking was fatal: “[t]he latter rule is what dooms Sorrentino’s claims. Illinois provides such a procedure, but he …

Continue Reading 7th Circuit Tosses Prisoner’s Takings Claim Under Williamson County’s State Procedures Rule

The Township of Ocean, New Jersey downzoned the plaintiffs’ residentially-and-commercially-zoned land to “Environmental Conservation.” The EC district allows “only very low density residential development or other low intensity uses,” with a minimum lot size of 20 acres. 

The plaintiffs, who own 34 acres subject the EC zoning, challenged the zoning ordinance, asserting it was “arbitrary, unreasonable, capricious and illegal,” and that it resulted in an inverse condemnation because it prohibited all uses.

In Griepenburg v. Township of Ocean, No. A-55-13 (Jan. 22, 2015), the New Jersey Supreme Court seemed to agree that there is little chance the property owners can make any use of their land: “[a]lthough plaintiffs’ single-family residence conforms to the ED district’s density requirement of one unit per twenty acres, no further development of their property within the EC district is permitted under the new zoning.” Slip op. at 13. 

The Supreme Court, however, held that the…

Continue Reading NJ: Environmental Preservation Zoning Might Prohibit Development, But Owner Must First Try To Develop

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This could be your view, winging your way to San Francisco in a couple of weeks, to join us for the 2015 ALI-CLE Eminent Domain and Land Valuation Litigation Conference (and the concurrent Condemnation 101 program), at the Hotel Nikko, February 5-7, 2015. 

There’s still a few spaces left, and time to register. We’re the co-Planning Chair of the Eminent Domain and Land Valuation Litigation program along with Joe Waldo, and we’ve assembled an exciting agenda, presented by a faculty comprised of the nation’s best-of-the-best in our field of law.

Winter in San Francisco is the one time of the year when you are likely to not be fogged in, and in addition to the 2 and a half days of programming, there are networking and social events so you can get to know your colleagues and the faculty better.

Please come and join us, if you…

Continue Reading Still Time To Join Us For The 2015 ALI-CLE Eminent Domain Programs In San Francisco

It’s always a safe bet to predict that the Supreme Court will deny review in a case, and if that’s what you had guessed for Kurtz v. Verizon New York, Inc., No. 14-439 (cert. petition filed Oct. 14, 2014), today’s order list would prove you right. 

That’s the case in which the Second Circuit threw out a complaint on Williamson County ripeness grounds, which, were the claim a takings claim, isn’t all that certworthy. The odd thing was, the court concluded that a procedural due process claim was not ripe under Williamson County‘s exhaustion of state remedies prong. Say what?

We submitted an amicus brief in the case, because the Second Circuit’s ripeness mission creep wasn’t warranted: Williamson County‘s rationale, is built on a takings-specific rationale and has no application to a due process claim, and our brief called for the Court to both reverse the Second Circuit…

Continue Reading Cert Denied In Kurtz: Williamson County Lives! (For Now)

Perhaps lost in all of today’s excitement surrounding the Supreme Court agreeing to review the same-sex marriage cases, is today’s cert grant in Horne v. USDA, No. 14-275, the California raisin case. That’s the case in which on remand from SCOTUS, the Ninth Circuit held that “the world’s most outdated law” was not a taking. 

So fire up your raisin puns, and get ready for another takings decision from the Supreme Court. 

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Continue Reading California Raisins Redux: SCOTUS Grants Cert In Horne II

Here’s the final program and faculty list for the 2015 Hawaii Land Use Conference, coming up Thursday and Friday, January 15-16, 2015, in downtown Honolulu.

This is the bi-annual gathering of Hawaii’s land use mavens, and this year’s program has two very special presenters. Storied lawprof Richard Epstein (perhaps more than a “mere mortal”) will be presenting the keynote talk on “Stealth Takings: Exactions, Impact Fees and More,” and our ABA colleague Patty Salkin, Dean of the Touro Law School, will get us our Ethics CLE credits with her usual exciting program on ethics topics. (As someone who has attended more than few of her presentations, we can report that it is worth the price of admission alone, and even though “ethics CLE” and “exciting” are words we usually do not associate with each other, Dean Salkin’s presentation is the exception.)

Our panel on “…

Continue Reading Still Time To Join Us For The 2015 Hawaii Land Use Conference (Jan. 15-16)

Ralph v. State of Washington Dep’t of Natural Resources, No. 88115-4 (Dec. 31, 2014), is a Washington-specific case because it involves the Washington Supreme Court’s view of a state statute governing where lawsuits “for any injuries to real property” “shall be commenced.” But since one of the claims brought by the plaintiff for flooding he alleged was caused by the State’s poor forestry practices was for inverse condemnation — and many states have similar statutes — we thought we’d give you a heads-up on the decision.

Ralph’s land in Lewis County was flooded when “heavy rains caused the Chehalis River to overflow its banks.” He asserted the DNR’s had “made its land unstable, which allowed landslides to form and debris to flow into the Chehalis River, which in turn displaced river water, flooded the river basin, and caused damage to [his] property.” Slip op. at 3. He filed suit in…

Continue Reading You Really Should File Your Inverse Condemnation Complaint In The County In Which The Land Is, But If You Don’t, That’s OK With The Washington Supreme Court

Congratulations to friend and colleague Thor Hearne for his being named as one the Top 50 Litigation Trailblazers by the National Law Journal. Or should we say Rails-to-Trails-Blazer?

Readers of the blog are familiar with his guest posts (see also this one), our coverage of his work, and his own Federal Takings blog, which covers his focus, recovering compensation for property owners for rails-to-trails takings in the Court of Federal Claims, the Federal Circuit, and the Supreme Court. 

More on the kudos for Thor here.  Here’s the complete write up from NLJ:

Pioneer Spirit: Thor Hearne’s first case on behalf of a landholder was when his client, a little village, had some of its property taken by the federal government under the Trails System Act. “We litigated and got into the U.S. Court of Federal Claims, where few people practice.” From there, his practice…

Continue Reading Property Rights Lawyer Among National Law Journal’s “Litigation Trailblazers”

Here’s that last case in our 2014 opinion queue, from way back in July. It’s also coincidentially the 2,500th post on the blog.

In Sawn Beach  Corolla, LLC v,.County of Currituck, No. COA13-1272 (July 1, 2014), the North Carolina Court of Appeals considered vested rights and takings claims in a fact pattern than streched back decades. 

In 1966, the owners purchased 1400 acres for residential development. In 1969, the owners recorded a subdivision plat, to make both residential and commerical uses. The county had no zoning ordinance in place at that time. The owners spent $425,000 on preliminary work and infrastructure, such as surveying, engineering and grading. Big bucks in 1960’s dollars.

The county adopted a zoning ordinance in 1971, zoning the property for “RO2,” which prohibits most businesses, including those contemplated by the owners. “Nevertheless, plaintiffs continued to believe that they would be allowed to commerically develop their…

Continue Reading Our Final 2014 Opinion Post: Vested Rights In North Carolina