This just in: the Ninth Circuit has issued an opinion in MHC Financing Ltd P’ship v. City of San Rafael, No. 07-15983 (Apr. 17, 2013), reversing the District Court’s decision that the city’s mobilehome rent control ordinance was a taking under Penn Central.
More, after a chance to review the opinion.
MHC Financing Ltd. P’ship v. City of San Rafael, No. 07-15982 (9th Cir. Apr. 17, 2013)
Continue Reading Ninth Circuit: No Penn Central Taking In Rent Control Ordinance
Here’s one to brighten your day, courtesy of the the U.S. District Court for the Middle District of Flordia (that’s Tampa, to all you non-Floridians). In Hillcrest Property, LLP v. Pasco County, No. 8:10-cv-819-T-23TBM (Apr. 12, 2013), the court held the county’s “Right of Way Preservation Ordinance” that allows it to land bank for a future road corridors by means of an exaction (more details on the ordinance below), is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation.” Slip op. at 4.
We’ve seen this situation before — the government wants to build roads, but it either doesn’t have the money to buy or condemn the necessary property to do so, or it simply figures it can get it another way. The county had such plans, and designated future transportation corridors on its comprehensive plans. In 2005, the county adopted the
You’d think the proposition in the title of this post, upheld today by the U.S. Court of Appeals for the Federal Circuit in Ladd v. United States, No. 2012-5086 (Apr. 9, 2013), would seem kind of obvious. That a landowner could not be charged with notice that a government act is a taking if the government admits to not even knowing about the event? But it wasn’t, and required a court of appeals’ opinion to lock it down.
This case is the latest from our colleague Thor Hearne. Readers know Thor as our semi-regular updater of the latest from the Court of Federal Claims in “rails-to-trails” takings cases, and this appeal is from a Court of Federal Claims case on that subject.
The Federal Circuit has a “bright-line rule” that the six year statute of limitations begins to run on a physical takings claim in a rail-to-trail case
Here’s a quick one from the Texas Supreme Court. Texas, Dep’t of Transportation v. A.P.I. Pipe and Supply, LLC , No. 10-1020 (Apr. 5, 2013) is an inverse condemnationut the issue isn’t really one of inverse condemnation, but who owns the property. If the City of Edinburg does, then TxDOT didn’t inversely condemn API’s property when it undertook a drainage project and removed soil from the parcel. If, as API claimed, it had title to the land, then TxDot was on the hook.
The issue was one of competing (and conflicting) recorded judgments from the same court, one year apart. The city condemned the parcel in 2003 from White, and the court entered a judgment vesting ownership of the parcel in “fee” to the city. The following year, however, the same court entered a “Judgment Nunc Pro Tunc” which “purported to render the 2003 Judgment ‘null and void,'” and
Continue Reading Texas: Which Judgment Rules In An Inverse Case?
As you know, the U.S. Supreme Court earlier reversed the Federal Circuit’s conclusion that government-induced flooding could not be a taking unless it was “permanent,” and remanded the case to the Federal Circuit for more.
Although the Federal Circuit indicated it would have preferred to avoid trying to deal with the issue (its order establishing a briefing schedule on remand invited the parties “to consider mediation of the issues remaining in the case following the Supreme Court’s remand”), it looks like that’s not what is happening, because the parties have filed their briefs.
The briefs appy the multi-factor Penn Central-ish “factors and circumstances” set out by the Supreme Court:
Continue Reading Arkansas Game On Remand From SCOTUS – First Briefs
Those of you on the east coast (or, who wouldn’t mind a visit to a very beautiful part of Virginia), mark your calendars: on April 25 and 26, 2013, CLE International is presenting the 7th Annual Virginia Eminent Domain Conference – Local, State, and National Trends at the Tides Inn in Irvington, Virginia.
My Owner’s Counsel of America colleague Joe Waldo, the Planning Chair for the conference, has kindly asked me to deliver the Keynote Presentation to speak about “Virginia’s Place in National Eminent Domain Trends.” The following day, I’ll also be presenting a one-hour session on “Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings” featuring the latest updates in those areas.
Joe and colleagues have assembled a talented and varied faculty, so please join us for two days worth of great CLE. Download the full brochure or the short version postcard, or, for complete
Continue Reading 7th Annual Virginia Eminent Domain Conference (April 25-26, 2013)
Our state courts may be closed on this Good Friday, but the courts of most other states’ are not, Texas courts included. So here’s an opinion issued today by the Texas Supreme Court, El Dorado Land Co. v. City of McKinney, No. 11-0834 (Mar. 29, 2013).
[Update: more on the case here from the Supreme Court of Texas Blog, including links to the briefs and the oral arguments.]
El Dorado sold the city some land for use as a park. The conveyance required that the land “shall be used only as a Community Park,” and if not used for that purpose, then El Dorado would have the right to buy the land back.
Ten years later the city built a public library on part of the land, which resulted in El Dorado reminding the city about that “park” use requirement by giving notice that it was
Continue Reading Texas: A Future Interest Is A Property Interest
Before the title of this post causes you to flee, please bear with us.
Oral arguments have just concluded in the Hawaii Intermediate Court of Appeals in a fascinating case involving the nature of “Torrens” title and, in a broader sense, the nature of property rights themselves. Disclosure: we filed an amicus brief in the case in support of the property owner. But more on that below.
Hawaii is one of the few remaining states retaining its Torrens system of title registration (two others are Massachusetts and Minnesota). We call it “Land Court,” a system in which the State guarantees indefeasible title to the rights and interests reflected in the title register.
In In re Trustees Under the Will of the Estate of James Campbell, No. 30006, the State of Hawaii claims that title to property on Oahu’s north shore which was registered and confirmed to the Campbell Estate
If that headline calls out to you, congratuations: you are officially a takings nerd.
In Brandt v. United States, No. 12-5050 (Mar. 26, 2013), the Federal Circuit held that a takings claim originally submitted as a compulsory counterclaim to the federal government’s attempt to quiet title in a District Court action — which was then subsequently filed as a separate action in the Court of Federal Claims — was not barred by 28 U.S.C. § 1500. That statute deprives the CFC of subject-matter jurisdiction “of any claim for or in respect to which the plaintiff … has pending in any other court any suit or process against the United States….”
If this case name sounds familiar, here’s why. Last week we posted the cert petition in a companion case (the one that the government alleged was pending at the time that Brandt filed his takings counterclaim). Brandt’s petition
No, the title to this post is not based on a character from a future Harry Potter book, but a wonderful phrase borrowed from German into the world of chess. “Zugzwang,” for those of you who are neither German-speakers nor chess players, describes a situation in which a player is in a good position, but any move will put her in a worse position. And move she must.
That’s what many property owners’ lawyers feel like when that regulatory takings case walks though their doors and they are asked “do we file now or later, and in which court?” You file now, and you may spend years litigating whether the case is ripe because it is alleged that you acted too soon. Wait, and you will be facing an argument that the statute ot limitations has run. Zugzwang. Same goes for which court, state or federal. File
Continue Reading Zugzwang Thwarted: Florida Property Rights Act Claim Timely Filed
