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In Rockies Express Pipeline LLC v. 4.895 Acres of Land, No. 12-3069 (Aug. 15, 2013), the condemnor was a gas pipeline company delegated the power of eminent domain under a federal certificate of public convenience and necessity, and the property owners were the owners of several coal mines.

They disagreed about the danger posed to a surface pipeline by coal mining. The pipeline company thought there wasn’t a problem, the coal companies thought otherwise. They  believed that once the pipeline was operational, the agencies that regulated coal mining would either delay or deny the required coal extraction permits and ultimately drive them out of business, even though under Ohio law the coal companies had a right to subside the surface. So the coal companies accelerated their coal mining, and eventually sought to recover from the condemnor pipeline company the costs associated with doing so.

Applying Ohio law (condemnations under…

Continue Reading 6th Cir: Coal Company Did Not Show It Was “Reasonably Foreseeable” That Coal Regulators Would Deny Mining Permits To Prevent Danger To Gas Pipeline

Here is a deeper look at the two lawsuits filed lastweek in U.S. District Court in San Francisco against the City ofRichmond, California, for the city’s Mortgage Resolution Partners-backed plan to condemn underwater mortgages, specifically those held by out-of-state securitizedbonds, residential mortgage-backed securitization (RMBS) trusts. The first Complaint was brought by Wells Fargo and a number of mortgage holders onbehalf of their trusts (“Wells Fargo” suit). The other, filed concurrently, was brought Wednesday bythe Bank of New York Mellon for its trusts(“Bank of NYM suit”).

My Damon Key colleague Bethany C.K. Ace has digested the complaints and provides us with her thoughts on the cases below. She joined me and Mark M. Murakami as the co-author of Recent Developments in Eminent Domain: Public Use, which is forthcoming in the next edition of the Urban Lawyer.

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More On The Two Federal Lawsuits Challenging The Underwater Mortgage Taking Scheme…

Continue Reading Guest Post: More On The Two Federal Lawsuits Challenging The Underwater Mortgage Taking Scheme

Update: More thoughts from Rick Rayl and Brad Kuhn (California Eminent Domain Report) here.

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Here’s a decision at the intersection of eminent domain valuation and unconstitutional exactions from the California Court of Appeal (Fourth District). In City of Perris v. Stamper, No. E053395 (Aug. 9, 2013) the court held that in a condemnation action, “issues surrounding the dedication requirement are essential to the determination of ‘just compensation’ and therefore must be “ascertained by a jury.'” Slip op. at 1.

First, some background. The city condemned a portion of Stamper’s industrially-zoned vacant land in order to realign and widen an adjacent road. Its deposit was based on the use of the land for agricultural purposes. But wait you say, the land was zoned industrial and even though it was vacant, when calculating compensaton, land is valued at its highest and best use. But get a load…

Continue Reading Cal App: Nollan/Dolan Issues Impacting Eminent Domain Valuation Are Decided By The Jury

From The Mayor (G): we’re “[t]aking these troubled loans off the hands of the [predatory] banks … and we’re paying them fair market value.” The video just gives you a whole lot of confidence that they know what they’re doing, does’t it?

The elephant in the room Her Honor doesn’t address about one big reason why Richmond has “destabilized neighborhoods” and isn’t enjoying the high prices so typical of other San Francisco Bay Area housing makerts is the horrible crime problem. If there’s one thing Richmond leads the way on — besides novel eminent domain usage that is — it’s crime: the city is consistently at the top of lists of the nation’s most violent municipalities. By all accounts, Richmond should be a housing paradise: across the Bay from prosperous Marin County, it’s outside the fog belt and has wonderful weather most of the time, and has miles of Bay…

Continue Reading Video: Richmond’s Mayor On Eminent Domain To Take Mortgages

That story about Richmond, California starting down the path of using eminent domain to take underwater mortgages is taking on a life of its own. Here’s the latest.

Before we bombard you with links to the most recent commentary and stories, here’s some backstory. Remember how we said this was taking on an “Occupy” flavor and seemed as much fueled by a let’s-get-those-greedy-bum-bankers vibe as by thoughful economics and a careful use of eminent domain? Well, a little digging showed that wasn’t far off. It seems that lawprof Robert Hockett, the guy who came up with this scheme (calling it a plan that “pays Paul and robs no one”) is a Founding Board member of something called the “Occupy Money Cooperative,” which touts itself as a “revolution,” “a cooperative company that offers low-cost, transparent, high quality financial services to the 99%.” (ps: you forgot “sustainable”). Hockett “has…

Continue Reading Mortgage Monday

Here’s what we’re reading today:

  • Our Owners’ Counsel colleague from New Jersey, Anthony Della Pelle, has posted some thoughts on the New Jersey Supreme Court’s recent decision in Borough of Harvey Cedars v. Karan, No. 070512 (July 8, 2013). That’s the case about valuation issues when there’s a partial taking of littoral property in order to erect protective dunes. Tony’s thoughts are well worth reading. 
  • In that vein, on Wednesday, August 14, 2013, starting at noon ET, we’ll be joining Tony and other experts to speak at the New Jersey Institute for Continuing Legal Education’s teleseminar on “Eminent Domain and Regulatory Takings:

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Continue Reading Wednesday Round-Up: Koontz Recording, Jersey Shore Dunes, Plastic Bag Bans

Update: Here’s more from the San Francisco Chronicle. As you read this and other stories on the issue, this begins to take on an “occupy” tone and a let’s-stick-it-to-the greedy-lenders flavor. Not a good sign for a considered use of eminent domain.

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Like a visiting relative, the proposal to use eminent domain to condemn underwater mortgages just won’t seem to go away. First attempted in large jurisdictions like San Bernardino County, it initially looked like the idea was petering out.

But now it seems like the idea has found traction in smaller municipalities that appear to be equally desperate such as North Las Vegas, and now Richmond, California, which appears on the brink of using its eminent domain power to take mortgages if the lenders don’t take the city’s offer to purchase. See “A City Works to Save Homes By Invoking …

Continue Reading Hey Look, Free Money!

Here’s the amicus brief of Atlantic Legal Foundation which urges the Supreme Court to review the Fifth Circuit’s decision in United States v. 0.073 Acres of Land, 705 F.3d 540 (5th Cir. 2013).

That’s the case in which the Fifth Circuit held that the association’s right to collect maintenance fees, recognized as property under Louisiana law, was not “compensable property” in an eminent domain action. The court held concluded that the “consequential loss rule” governed, and thus the property interest, although taken, was not compensable because the right to collect assessments was like a business loss and a frustrated contract.

The Association filed a cert petition and was supported by several lawprofs.

ALF’s amicus brief argues:

The decision of the Fifth Circuit below raises the question whether the Takings Clause requires the government to compensate private parties for the lost value of real covenants associated with land it…

Continue Reading One More Amicus Brief In Condo-Assessments-As-Property Case

Here’s the latest from the Wisconsin Supreme Court. In Waller v. American Transmission Co., LLC, No. 2013AP805 (July 16, 2013), the court held that when a partial taking for an easement for transmission lines substantially impaired the economic viability of the remnant parcel, the condemnor is liable for taking the entire parcel.

Gideon Kanner summarizes the opinion in “When Must the Condemnor Take the Whole Parcel, Even Though it Wants to Take Only a Part of It?” (“So we won’t go through the whole megillah in anything resembling detail. But the court’s bottom line is clear: the condemnor — in this case a public utility seeking to take an easement — must take the entire larger parcel and pay for it when the owner so wishes and in the after condition the property, if subjected only to a partial taking, would wind up in an uneconomic condition.”).…

Continue Reading Wisconsin: You Broke It, You Bought It

A coalition of law professors including property law scholars Richard Epstein, James Ely, and Ilya Somin, along with the Cato Institute have filed an amicus brief supporting the cert petition in Mariner’s Cove Townhomes Ass’n v. United States, No. 12-1453 (cert. petition filed June 12, 2013).

That’s the case in which the Fifth Circuit held that the association’s right to collect maintenance fees, recognized as property under Louisiana law, was not “compensable property” in an eminent domain action. In United States v. 0.073 Acres of Land, 705 F.3d 540 (5th Cir. 2013), the court held concluded that the “consequential loss rule” governed, and thus the property interest, although taken, was not compensable because the right to collect assessments was like a business loss and a frustrated contract.

The Cato/lawprofs’ brief argues:

By adopting the minority view in the split among the circuits and the States, the Fifth Circuit’s…

Continue Reading Lawprofs’ Amicus Brief: Townhome Association’s Right To Collect Assessments Is A Compensable Property Interest