Inverse condemnation

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Pasadena, California, in addition to loving roses, apparently loves trees.

The city owns 60,000 street trees, and as the City Arborist testified in City of Pasadena v. Superior Court, No. B255800 (Aug. 14, 2014), “the City catalogued these trees in a database, that he ‘headed an urban tree maintenance program,’ and that ‘[t]he City strives to enhance the quality of life through the promotion, protection, and balanced management of … trees.'” Slip op. at 9.

One day, however, one of those trees fell on the home insured by Mercury Casualty Company. 

Mercury paid the homeowner, then looked to the City for damages in subrogation, asserting nuisance and inverse condemnation. Under California law, inverse condemnation liability arises when property is injured by a public project or improvement in which the defendant substantially planned, approved, constructed, or operated. As the court noted:

The sole issue here is whether the…

Continue Reading Cal App: City-Owned Tree Might Be A “Public Improvement” Supporting Inverse Condemnation Claim

Last week, we posted our amici brief in Texas v. Clear Channel Outdoor, Inc., a case in which the Texas Supreme Court is considering two questions: first, whether a billboard owner is entitled to just compensation when the land on which it sits is taken by eminent domain, and second, what method of valuation can be used to measure compensation, if so. Here are the rest of the briefs in the case. 

Texas needed to widen a freeway, and condemned the land on which the billboards were located. It refused to pay just compensation on the grounds that the billboards were personal property and not “realty,” and thus the owner could simply move them. The State issued a removal order. In response, the owner filed an inverse condemnation action to recover just compensation for the billboard takings. 

The court concluded the billboards are not moveable property, but are fixed…

Continue Reading Briefs In Texas Supreme Court: Is A Billboard Moveable Property?

Here’s a new cert petition, filed yesterday, that poses two interesting issues, the first of federalism, the other of exactions.

This is a rails-to-trails case in which the federal government asserts that the easements imposed on private property for a public park in New York City after the railway was abandoned did not result in a taking because the owners signed agreements with the city giving up their rights in exchange for development rights on other parcels. Included within this agreement — to which the federal government was not a party — was a covenant not to sue the city or the federal government. When the owners sought compensation in the Court of Federal Claims, the CFC dismissed because the federal government was the third-party beneficiary of the city-owner agreement. 

This is a question of New York law, and according to the petition, no New York court has ever…

Continue Reading New Cert Petition: In Rails-To-Trails Case, Fed Circuit Should Have Punted State Law Contracts Question To State Court

A couple of years ago, we posted the complaint (actually, a petition for mandate) alleging a big regulatory takings claim against the County of San Luis Obispo based on the County’s denial of a permit to drill for oil. A very big claim. $6.24 billion big. See “Wow, That’s A Lot of Just Compensation.”

We always wondered what happened to that lawsuit. Now, thanks to our colleagues at the California Eminent Domain Report, we know. 

In “How Untimely Service Can Be Deadly To Your Takings Claim,” Ben Rubin reports that in an unpublished decision, the California Court of Appeal affirmed the dismissal of the complaint for failure to timely serve it on the County. The plaintiffs filed the complaint on time, they just didn’t serve it. Read Mr. Rubin’s write up for the details, but here are the highlights:

  • The County’s denial of the

…
Continue Reading Cal App: OK For County To Mislead By Omission In Due Process Notice

To those of you who joined us at the ABA’s Land Use, Planning, and Development Forum, thank you. Here are links to some of the topics I mentioned: 

Those of you who couldn’t make it can get the recording on CD or mp3 here in a couple of weeks, once it is produced.  

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Continue Reading Links From Today’s Land Use, Planning, And Development Forum

Here’s what caught our attention today:

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Continue Reading Friday Round-Up: Eminent Domain, Cal Food Fight Ends (Maybe), Midwest Flooding

We finally got around to reading “What Lies Beneath,” an opinion piece from the New York Times that we’ve been saving in our to-read list since the spring, Linda Greenhouse’s musings on the U.S. Supreme Court’s 8-1 decision in Marvin M. Brandt Revocable Trust v. United States.

In that piece, Ms. Greenhouse notes that Brandt was one of those cases she pretty much didn’t care about (“I hadn’t read the briefs or the argument transcript, let alone attended the argument itself.”). In other words, it wasn’t about Citizens United, abortion, or religion, the usual things the reporters who cover the Supreme Court beat consider hot topics. No, this was one that — even after she read the opinion — “I had only a vague sense of what the case was about and none whatsoever of its significance, if any,” that it it concerned what happens when…

Continue Reading New York Times SCOTUS Reporter: Wow, Brandt Was About Rails-To-Trails And Property Rights!

There’s still time to register for one or more upcoming CLE programs sponsored by the ABA Section of State and Local Government Law:

I’ll be part of the “Hot Topics in Land Use” panel, speaking about recent developments in regulatory takings. These are replays of the in-person programs we put on at the recent Spring Meeting in Asheville, NC.

Register for all three programs and receive a 20% discount. Continue Reading Upcoming CLE Trifecta: Hot Topics In Land Use Law, Heirs Property, Urban Ag (July 15, 2014)

Here is the recording of last month’s Hawaii Supreme Court oral arguments in Bridge Aina Lea Dev., LLC v. Bridge Aina Lea, No. CAAP-13-0000091.

This is the state court half of the case. The federal court half is pending in the Ninth Circuit, which, after oral arguments earlier in June, decided to hold off on deciding the appeal until after the Hawaii Supreme Court issued its decision in this case. 

Both cases started off in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal from a decision of the State Land Use Commission. The essence of the plaintiff’s allegations is that the LUC wrongfully amended the land use boundaries from urban to agriculture. Many years earlier, the LUC had amended the boundary to urban on the condition that the owner provide a certain number of affordable…

Continue Reading HAWSCT Oral Arguments In In Bridge Aina Lea: LUC Reclassifications And Orders To Show Cause

Update: Here’s a story on the case from the Sacramento Bee (“State Supreme Court to rule in Delta property-rights case“). See also “Property Reserve on Hold: Supreme Court to Review Eminent Domain Right of Entry Statutes” from Brad Kuhn at the California Eminent Domain Law Report.

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Thanks to our New York colleague Mike Rikon at Bulldozers at Your Doorstep, we’ve come to learn that on June 25, 20154, the California Supreme Court agreed to review a very important eminent domain case, Property Reserve, Inc. v. Superior Court, 224 Cal. App. 4th 828 (2014).

That’s the case in which the Court of Appeal held that California’s entry statute (Cal. Civ. Pro. Code § 1245.010 et seq.), was unconstitutional because it allowed an uncompensated taking. We summarized the Court of Appeal opinion here.

California’s entry statute is much like similar provisions in other…

Continue Reading Cal Supreme Court To Review Eminent Domain Entry Statutes – A Free Pass, Or A Taking?