Inverse condemnation

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Here’s the property owner’s merits brief in the case about the meaning of the term “railroad right of way” in an 1875 federal statute, Marvin M. Brandt Revocable Trust v. United States, No. 12- 1173. The meaning of a term in a somewhat obscure federal statute in a quiet title action isn’t a case of obvious interest here, but as the amicus brief we filed at the cert stage points out, a decision in the government’s favor could jeopardize rails-to-trails takings cases.

The issue in Brandt is whether the federal government retained an “implied reversionary interest” when it issued railroad patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court asserting it owned the…

Continue Reading Petitioner’s Brief In Rails-to-Trails Case

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A big thanks to my Owners Counsel of America and ABA State and Local Government Law Section colleague Dwight Merriam for emceeing today’s well-attended double session on land use and takings law at the International Municipal Lawyers Association’s 2013 annual meeting in San Francisco. Dwight and I were joined by land use expert Cecily Barclay, who presented sessions on Harvey Cedars, while I covered Koontz and Dwight did the relevant parcel/Lost Tree sessions. Continue Reading IMLA Conference Session On Koontz, Harvey Cedars, Relevant Parcel

A link to a story worth reading about the U.S. Supreme Court’s decision in Koontz v. St. Johns River Water Management District, No. 11-1147 (June 25, 2013).

In Developing Story at Florida Trend (“The Magazine of Florida Business”), our Owners’ Counsel of America colleague Amy Brigham Boulris is quoted along with the property owner/petitioner Coy Koontz, and two lawprofs who don’t care for the decision.

Check it out, it’s a quick read. Continue Reading Worth Reading On Koontz: “A 20-year legal battle over a water management district’s condition for development is over – sort of.”

Here’s one for all you civil procedure mavens.

The Florida District Court of Appeal concluded that the Board of Trustees, sued for inverse condemnation for beach renourishment (this case is somewhat related to our old friend the Stop the Beach Renourishment case, decided by the Supreme Court in 2010), waived their objections to improper venue. The court held that when the plaintiffs amended their complaint, they did not change the nature of their inverse condemnation claim, which thus “related back,” and since the Board hadn’t objected to venue originally, it could not do so now.

The court also concluded that the Board could be sued in the county where its headquarters are located, even though the taking occured in another county, and that it was a waivable issue, and not one of subject matter jurisdiction. Yes, condemnation actions are in rem and are to be litigated where the property is…

Continue Reading Fla App: Inverse Condemnation Venue Proper Where Taker’s Headquarters Located

This past term, the U.S. Supreme Court in Arkansas Game and Fish Comm’n v. United States, 133 S.Ct. 511 (2012), held that government-induced flooding could result in takings liability, even if the flooding was merely temporary. The Court remanded the case to the Federal Circuit to determine whether the flooding resulted in liability.

The Federal Circuit ordered supplemental briefing, and the parties and amici responded. Earlier this month, the court held oral arguments.

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The government’s counsel argued that the Supreme Court adopted a new test for temporary flood takings that looks like a hybrid Penn Central test, while the Commission’s counsel argued that the Court expressly did not adopt a new test, and that temporary flooding cases are to be treated just like any other physical invasion under the existing test.

With the arguments submitted, now we wait. Continue Reading But … What If Penn Central Terminal Is Flooded?

Here’s one we’ve been meaning to post for a while. It’s a Court of Federal Claims opinion in a case involving an indian nation’s takings lawsuit, seeking compensation for its inability to challenge the 1859 conveyance of what is now the town of Southampton, New York without the required tribal consent. Shinnecock Indian Nation v. United States, No. 12-836 L (Aug. 29, 2013).

The judicial taking part of the long opinion (21 single-spaced pages) starts on page 18, where the court rejected the plaintiff’s request to amend its complaint to add a claim for judicial taking. The opinion recounts the judicial takings theory but refused to allow amendment because, “the portion of the Supreme Court’s decision in Stop the Beach that discussed the standard for finding that  judicial taking had occured and stated that a judicial taking was a valid cause of action was signed by only four justices.”…

Continue Reading CFC: No Amendment Of Complaint To Allege Judicial Taking Because Theory Not Adopted By The Federal Courts

As we noted here, where we posted the petition for review, what might be the first major appellate decision following the U.S. Supreme Court’s decision in Koontz may be on the way.

Today, the California Supreme Court agreed to review (order here) the Court of Appeal’s decision in California Building Industry Ass’n v. City of San Jose (6th District June 6, 2013), which held that under rational basis review (and not heightend scrutiny) the city of San Jose’s affordable housing exaction might survive because it was designed to promote the development of affordable housing, and not to mitigate the impacts of market priced housing.

This is not only a chance for the Cal Supreme Court to resolve the lower appellate court split on the issue, but whether, as the Petition‘s Question Presented argued, Koontz “governs the judicial review of in-lieu development fees in California. Koontz clarifies…

Continue Reading Cal S Ct To Review “Inclusionary Housing” Money Exaction – First Major Post-Koontz Decision On The Way?

Here’s the Opinion and Order of the Court of Federal Claims after the damages trial in Childers v. United States, No.  08-1981 (Aug. 5, 2013). It’s a very long opinion (145 pages, with a table of contents!), so we’re not going to summarize it, but if you want to know how a rails-to-trails case is tried, you can’t do better than this. Here’s the court’s overview:

This Fifth Amendment taking case comes before the Court following a trial on damages. Plaintiffs, landowners of 13 separate properties in Sarasota, Florida, seek just compensation stemming from the imposition of a recreational trail across their properties pursuant to the Rails to Trails Act. Specifically, Plaintiffs seek $8,703,800, representing $4,938,200 for the encumbrance of the trail and $3,765,600 in severance damages. Defendant asserts that compensation should be limited to the encumbrance, which it claims is properly valued at $2,220,900. The Court awards just…

Continue Reading Major CFC Decision On Rails-To-Trails Takings

Here’s what we’re reading today:

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Continue Reading Must Read Monday: RLUIPA Ripeness, “The Taking Issue,” Oysters In The Wilderness, Precondemnation Damages

Every now and then, we post an update from the rails-to-trails arena. But we’ve never provided a “big picture” look at the issue. Well, law.com has saved us the effort. In “Rails-to-Trails Program Costly to Taxpayers,” Jenna Greene provides an overview of how a law the Congressional Budget Office said “wouldn’t cost the federal government a thing,” ended up costing the taxpayers $49 million in the last year alone. Worth reading.

For our latest foray into this area, see our amicus brief urging the Supreme Court to review a Tenth Circuit case about the meaning of the term railroad “right of way” in an 1875 federal statute. We argue that the case, if left unreviewed by the Court, is an effort to undercut rails-to-trails takings cases. Continue Reading A Summary Of Rails-to-Trails Takings Cases