Just Compensation | Appraisal

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We won’t go into the West Virginia Supreme Court of Appeals’ opinion in Gomez v. Kanawha County Comm’n, No. 15-0342 (June 3, 2016) — it’s well-written and easily digested (all citations are in footnotes) — but point out these highlights:

  • The condemnation took Gomez’ property for use as a dump site for debris from construction to improve an airport by removing the top of a hill that the FAA said interfered with take offs and landings. 
  • The stated public use was “improving, maintaining, and operating Yeager Airport.”
  • Gomez objected, arguing that using her property as a dump didn’t qualify, and that a jury — not the judge — could make that determination.
  • The Supreme Court disagreed: public use is a question of law, and one which the judge determines.
  • The court also rejected Gomez’ argument that the project influence rule was not applicable. She claimed the valuation must include the

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Continue Reading W Va: Condemnee Acting Badly Isn’t Reason Enough For Summary Judgment

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As we head into the weekend, one more reminder about two worthwhile eventss being staged next week: 

  • Monday, June 6, 2016: “Airbnb & Zoning: A Planner & Lawyer’s Guide to Short-Term Rentals,” with our ABA and Owners’ Counsel colleague Dwight Merriam, FAICP. From the Planning and Law Division of the American Planning Association. Details here. If issues about the “sharing economy” like AirBnB, Uber, Lyft, and similar operations, and how they work in the regulatory environment are of interest, you might want to consider joining us at the ABA: we’ve just formally launched a new group within the Section of State and Local Government Law dedicated to these pressing legal questions. Stay tuned here for a separate post on how to join us.  
  • Thursday & Friday, June 9-10, 2016: Oregon Eminent Domain Conference, Portland. We’ll be speaking at that one. The focus is on Oregon

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Continue Reading Seminar Reminder: Oregon Eminent Domain; Sharing Economy Issues

Programming note: On the day we remember our nation’s war dead, we thought we’d repost this one, about how Arlington National Cemetery came to be, and how yes, there’s a takings story there.

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LastbattlebookYou know how we’re always saying that the provisions in the Takings Clause are “self-executing,” that even in the absence of a waiver of sovereign immunity, the Tucker Act, and section 1983, property owners would still be able to maintain a claim for compensation? Well here’s an article that explains that how that rule was first articulated, and not in a dry academic way, but with a fascinating historical story.

It’s the tale of United States v. Lee, 106 U.S. 196 (1882). We knew the land that is now Arlington National Cemetery was once owned by Robert E. Lee, but we can’t say that we gave much thought to how it became public property. We…

Continue Reading Memorial Day, Arlington National Cemetery, And Takings

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The dramatic moment of the day during last Thursday’s California Supreme Court oral arguments in City of Perris v. Stamper, No. S213468 (which we previewed here: “Cal Supreme Court Oral Argument Preview: In Just Comp Trial, Does Jury Determine Reasonable Probability Of Exaction?“), occurred during the rebuttal arguments by the city’s lawyer. The case involves whether the city can avoid paying just compensation by showing that it would, in the future, exact from the owners the very same property which the city is condemning. The only way the city wouldn’t require dedication of this property is if the owner continued to use it for agricultural purposes. 

Counsel for the city had opened her initial argument time with this:

May it please the court…The project effect doctrine, Your Honors, categorically does not apply to dedication. The city can validly get a piece of land for free because it is roughly proportional…

Continue Reading Perris When It Sizzles: Why Pay When “we can get it for free” — California Supreme Court Oral Argument Recording

A short one from the Maine Supreme Judicial Court. In Pinkham v. Dep’t of Transportation, No. 2016 ME 74 (May 19, 2016), the court held that portions of the DOT’s appraiser’s report which appraised other properties being taken as part of the same project were not confidential or privileged under the state’s public records laws. 

The DOT was taking the property of Pinkham and others. It generated an appraisal report which included Pinkham’s property, and that of others. The DOT produced those parts of the report applicable to Pinkham, but claimed the parts about the other properties were “confidential” and subject to privilege, relying on a statute which provides that certain DOT records are confidential and “may not be disclosed.” The trial court agreed.

The Supreme Court reversed. Confidentiality under the state’s public records laws is not discovery in an eminent domain case. This is the “closed universe of litigation”…

Continue Reading Maine FOIA Doesn’t Make Parts Of DOT’s Appraisal Reports Confidential

Tomorrow morning, Thursday, May 26, 2016, starting at 9:00 a.m., the California Supreme Court will be hearing oral arguments in an eminent domain case that sits at the intersection of jury determinations of just compensation, and the Nollan/Dolan unconstitutional conditions issue. 

Here is the link to the argument live stream. 

The court is now live-streaming video of oral arguments, so you can follow along in real time. We’ll post the link when it goes live at the court’s web site.

Programming note: the argument is second on the 9:00 calendar, which means that the case will most likely be called some time after 10:00 a.m., after the first case is done. 

In City of Perris v. Stamper, No. E054495 (Cal. App. Aug. 9, 2013), the Court of Appeal held that in a condemnation action, “issues surrounding the dedication requirement are essential to the determination of ‘just…

Continue Reading Cal Supreme Court Oral Argument Preview: In Just Comp Trial, Does Jury Determine Reasonable Probability Of Exaction?

Untitled Extract Pages

About this time last year, the Court of Federal Claims held that the federal government was liable for a temporary taking to certain property owners for the flooding caused by Hurricane Katrina and the Corps of Engineers’ failure to maintain the “MR-GO” (Mississippi River-Gulf Outlet) canal system. See also a guest post by our colleague Ed Thomas, “Katrina Flood Decision Emphasizes Science.” 

The CFC has now followed up on that ruling with an order (St. Bernard Parish Gov’t v. United States, No. 05-1119L (May 4, 2016)) determining just compensation, thus teeing the case up for the federal government’s appeal to the Federal Circuit.

The opinion is a long one (44 single-spaced pages, including footnotes) and has a lot of detail and technical stuff for you smart readers, but it also has pictures and charts for the rest of us.  

The opinion also contains…

Continue Reading CFC Awards Just Comp In Katrina Flooding Case And Tees Up The Appeal

In Ransom v. Village of Cross Plains, No. 2015AP1556 (Apr. 28, 2016), the Village took a part of Ransom’s property, 703 square feet to be precise. The parties actually agreed on the amount of just compensation for the 703 square feet. But Ransom asserted that the Village also took a temporary easement after the case was initiated, and that he should be compensated for that as part of the eminent domain case.

The Village acknowledged that it might owe him compensation for taking the temporary easement, but argued that it shouldn’t be part of the eminent domain case. Ransom’s remedy, it argued, was to sue the Village for inverse condemnation.

The Wisconsin Court of Appeals agreed with the Village. The court rejected Ransom’s arguments that it was unfair and made little sense to force him to bring a separate inverse claim, when the Village knew at the outset that…

Continue Reading So Sue Me: Remedy For Condemnor Taking More Than It Is Condemning Is Inverse Condemnation

A quick one from the U.S. Court of Appeals for the Sixth Circuit, in a federal condemnation, United States ex rel TVA v. 1.73 Acres of Land, No. 15-5530 (May 5, 2016). 

The Tennessee Valley Authority condemned an easement on a strip of Mr. Thomas’ undeveloped land (zoned for agricultural/residential uses) for utility lines. The owner said he had plans to develop a hotel on the site to take advantage of the views from the nearby interstate highway. The case was heading to a jury trial on the issue of just compensation.

The district court, however, refused to let the jury consider the owner’s expert witness report. The expert was going to testify about the feasibility of the site for a hotel, and how power lines killed those plans. Lacking an expert witness, the owner testified at trial about the value of his land.At the close of the evidence…

Continue Reading 6th Cir: Going To War With The Army You Have Isn’t Good Enough To Get To The Jury

California Associate Justice Goodwin Liu — often mentioned on short lists of potential future nominees to the U.S. Supreme Court even after the Republican-led Senate stymied his nomination by President Obama to the Ninth Circuit — just saw his chances for a promotion go up today, if ever so slightly. No, we’re not talking about Donald Trump’s Indiana primary victory, even though that might play into it. Rather, we’re talking about an eminent domain case that was argued earlier this morning in the California Supreme Court.

Yes, you read that right: an eminent domain case might be instrumental in a future SCOTUS appointment. 

Live From San Francisco!

We weren’t able to be present in the San Francisco courtroom for today’s arguments in Property Reserve v. Superior Court. But for the first time, the court beamed arguments live on the web for all the world to see, so we…

Continue Reading Cal Supreme Court Post-Argument Analysis: Does The Entry Statute Provide The Same Protections As Eminent Domain?