Inverse condemnation

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Those of us who practice eminent domain and land use law see the world through a different lens than everyone else. When normal people get stuck in traffic because of highway construction, they may view it as a mass of cement mixers, graders, and safety-vested crews. We eminent domain lawyers see partial takes, severance damages, limited access problems, and recalcitrant DOT’s. Where others see a harbor or a dam, we see navigational servitudes. Where others see billboards, we wonder if it’s a fixture for which the owner is entitled to compensation. And that’s not a train, it’s a future rails-to-trails issue. 

Come on, you’re among friends — you can admit if you’ve done the same. 

When we travel away from our home base, we somehow locate the eminent domain angle, no matter how obscure. We’ve done it before, and even once crossed over into “nuclear…

Continue Reading Eminent Domain Tourism, Asheville Edition

Ah, the speed of the internet: we were all set to write up the recent decision by the Supreme Judicial Court of Massachusetts in Sorenti Bros., Inc. v. Commonwealth, No. SJC-11420 (May 19, 2014), when we noticed that the good folks over at the Massachusetts Land Use Monitor had already done so. 

So if the question of whether a gas station owner can recover compensation by virtue of the Commonwealth eliminating a roundabout and thereby (allegedly) impeding access to the station floats your boat, read all about it here: SJC Reverses Eminent Domain Judgment For Impacts From Sagamore Bridge “Flyover.” 

One note: compare the way the SJC treats the issue with how the Supreme Court of Canada treated a similar (thought not exactly the same) situation. 

Related articles
O Canada! Supreme Court Affirms Compensation For Causing Business Losses

Continue Reading Mass: Gov’t Not Liable For Impacts Of Road Project On Nearby Business

As a cost-saving measure, Austin, Texas’s utility department had a “wait until it breaks” power line inspection policy, and one day, the lines broke.

Unfortunately, the broken power lines caused the Steiner Ranch wildfire which destroyed 23 homes. Insurance companies and uninsured homeowners sued the city, alleging tort and inverse condemnation claims. Sound familiar? 

When the trial court refused to dismiss the claims, the city sought review in the Texas Court of Appeals (Third District), which reversed. City of Austin v. Liberty Mutual Ins., No. 03-13-00551-CV (May 16, 2014). The court held that to properly plead an inverse condemnation claim in Texas, the plaintiff “it is not enough merely to allege that the act causing the damage was intentional. Rather, a party must allege that the governmental entity intended the resulting damage, or at least knew that the damage was substanitally certain to occur.” Slip op. at…

Continue Reading Tex App: Wildfire Not A Taking Unless Gov’t Meant To Cause It

Both a jury and the Court of Appeals concluded that the City of Milwaukie, Oregon, was liable in inverse condemnation for $58k because when it cleaned out the city’s sewer lines, it cause you-know-what to back up into Ms. Dunn’s house. The City asserted that it wasn’t liable — it didn’t mean to cause the stuff to invade her home — and took the case to the Oregon Supreme Court, which, in Dunn v. City of Milwaukie, No. SC S059316 (May 8, 2014), agreed.

Apparently, “hydrocleaning” the city’s sewer system (the court’s description of a process which sounds to us non-sanitation engineers as nothing more than a giant municipal enema) in this part of town was supposed to be done on low pressure, but higher pressure (1500-2000 psi) was used, with horrible results. Ms. Dunn “heard a ‘loud roar,’ felt her house shake, and then ‘brown and …

Continue Reading Oregon SCT: City Causing Sewage To Back Up Into Home Was Not A Taking

Update: PLF’s Dave Breemer on the decision “In a New Victory, Court Blasts Rules Barring Court Access for Property Owners,” while Gideon Kanner adds his thoughts in “Be Still, My Heart! Second Circuit Rules for a Property Owner In a Stinging Inverse Condemnation Opinion.” 

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Check this out, just received: In Sherman v. Town of Chester, No. 13-1503-cv (May 16, 2014), the U.S. Court of Appeals for the Second Circuit held that a takings claim was ripe, and that Williamson County does not stand in the way. 

We love the way this opinion starts off, with a literary reference:

Hungry Joe packed up his bags and wrote happy letters home. He had flown the 25 missions required to complete a tour of duty. But thing were not so simple on Catch-22’s Pianosa island. He soon discovered that Colonel Cathcart had just raised the number of…

Continue Reading 2d Cir and Catch-22: Takings Case Ripe, “Seeking a final decision from the Town would be futile”

We’ve been tied up with some filings, and have not been able to get to our promised review of the Ninth Circuit’s recent decision in Horne v. United States. We will do so once we put one more  brief to bed, but until then, our colleagues in the Regulatory Takings Bar have published some thoughts:

  • The Horne Case Down the Tubes Again – Professor Gideon Kanner weighs in: “We are reminded of the insight of Fred Bosselman who once observed that property owners in inverse condemnation cases are denied due process of law, not by getting too little of it, but rather too much.”
  • The Grapes of Wrath Part II – A Return to Horne – Ben Rubin at the California Eminent Domain Report writes: “The Ninth Circuit found that as the Marketing Order operated against personal, rather than real, property, and because the Hornes conceded that they did

…
Continue Reading Raisin Hell – Links To Reports On Horne

Those of us who have been in the courtroom when the U.S. Supreme Court has conducted its sessions over the past decades will certainly recall the fairly tall guy in the fancy suit guiding the lawyers, press, and audience members where to sit, what to do, and the like. That was the Clerk of the Court, William Suter, who recently retired from the job after a number of years doing it.

He’s now a visiting fellow at the Hoover Institution, and has authored this short piece, “Executive Power on Steroids.” where he posits that “[i]n four recent Supreme Court cases, the Obama administration takes a crabbed view of individual rights.” Two of the four cases Gen. Suter writes about (see, he’s also a retired U.S. Army Major General) are decisions with which we are familiar, Sackett and Arkansas Game and Fish:

What do these cases have in common?

Continue Reading Former Clerk Of The Supreme Court: Govt “Bullying” And “Strong-Arming” Property Owners

Here’s an article worth reading, co-authored by our colleague Edward Thomas (no relation, although we often kid that Ed is our brother-in-the-law), President of the Natural Hazard Mitigation Association, and a fellow who is concerned both with anticipating natural hazards such as sea level rise, hurricanes, and the like, as well as property rights. 

Thanks to permission from the Environmental Law Institute, which has has graciously allowed us to reproduce Ed’s latest from the National Wetlands Newsletter, we’re able to bring you “Turning Koontz Into an Opportunity for More Resilient Communities,” which posits that the sky is not falling because of the Supreme Court’s decision in that case: 

Many did not see the positive side of Koontz when the decision was released. Almost immediately, many commentators viewed the case as a victory for property owners and a defeat for government regulation. Many alarmist articles were written…

Continue Reading New Article Of Note: Turning Koontz Into an Opportunity for More Resilient Communities

The case that seemingly wouldn’t end — Coy Koontz, Jr.’s continuation of his late father’s case against the St. Johns River Water Management District over the WMD’s demand that they “pay to play” — has ended with its eighth appellate decision (including the now-famous visit to the U.S. Supreme Court), with another win for Koontz.

In St. Johns River Water Management District v. Koontz, No. 5D06-01116 (Apr. 30, 2014), the Florida District Court of Appeals made short work of the WMD’s argument that there were some loose threads left over from the prior decisions. The opinion doesn’t say much about the substantive law, except to say “we said this all before, and we haven’t changed our minds.” 

Because our decision in Koontz IV is entirely consistent with the decision of the United States Supreme Court, we adopt and reaffirm Koontz IV in its entirety and affirm the judgment below. We…

Continue Reading Fla App In Koontz VIII: We Were Right Before, Koontz Wins Again

Back in October, we had the honor of moderating a discussion about the ripeness issue in takings law at the 40th Anniversary Symposium on The Takings Issue at Touro Law School (see here and here for more). Professor Vicki Been and Pacific Legal Foundation’s J. David Breemer were the panelists, each weighing in on how Williamson County came to be, and what future the rule may have, if any. 

The Touro Law Review has now published Dave’s article, “The Rebirth of Federal Takings Review? The Courts’ ‘Prudential’ Answer to Williamson County’s Flawed State Litigation Ripeness Requirement.” Here’s the summary:

This article addresses recent developments in the law of takings arising from the courts’ application of the rule, articulated in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 185 (1985), that a property owner must sue for damages in state court to ripen a Fifth Amendment takings …

Continue Reading New Article Of Note: The Rebirth of Federal Takings Review? The Courts’ ‘Prudential’ Answer to Williamson County’s Flawed State Litigation Ripeness Requirement