Just Compensation | Appraisal

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As 2023 comes to a close, here are a few of the decisions that we wanted to blog about, but didn’t have the time.

  • Bruce v. Ogden City Corp., No. 22-4114 (10th Cir. Dec. 1, 2023): city demolishing a building that was damaged by fire was not a Lucas taking because the owner still has use of the land (even though the building is gone). And no Penn Central taking because… Penn Central.
  • Moriarity v. Indiana, No. 22A-PL-2899 (Ind. Ct. App. Nov. 15, 2023): State ordering removal of illegal dam was not a taking under U.S. or Indiana Constitution. The owners don’t have a property right to build an illegal dam. Thus, the “background principles” exception to Lucas rules the day. And no Penn Central taking because the owners never had any investment-backed expectations they could build this dam.
  • Lafayette Bollinger Dev., LLC v. Town of

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Continue Reading 2023 Year-End Clean Up

Here are the cases that Michael Berger and I discussed in today’s presentation to the ABA State and Local Government Law Section’s Land Use group. It was good seeing everyone, even virtually:

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Continue Reading Cases And Links From Today’s ABA State & Local Govt Law Land Use Presentation

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Starting in January, we’ll be helping our friend and former law partner Mark M. Murakami with the venerated and oh-so-important Land Use course (Law 580) at the University of Hawaii’s Law School.

We’re temporarily stepping into some mighty big slippers (this is Hawaii, so we don’t always wear shoes), as this is the course that our mentor Professor David Callies taught for decades. And is there a better venue in which to teach and study land use law and regulation, and its limits? After all, Hawaii may be the most heavily-regulated land on the planet, and is a focal point for every issue you can think of, from zoning to environmental restrictions to takings to public trust to subdivision to admin law to … well, you get the drift.

We’ll cover those topics, as well as the fundamentals. And we have a few surprises up our sleeves — some impressive…

Continue Reading Hawaii Five-80: More Land Use (Law 580) At The University Of Hawaii

You might not think that the principle of law the Louisiana Court of Appeal (Fourth Circuit) enunciated in Watson Memorial Spiritual Temple of Christ v. Korban, No. 2023-CA-0293 (Dec. 13, 2023) is really in need of enunciating: if the government takes property, the property owner is entitled to just compensation. Entitled, as in the condemnor must pay.

But apparently, that principle isn’t all that obvious. At least in Louisiana. As readers of this blog understand, you can get a final judgment for inverse condemnation from a Louisiana court, but the defendant/taker retains the discretion whether to actually pay it, and the usual judgment-enforcement procedures are not available. In short, the “requirement” to pay just compensation is more of a suggestion than an actual requirement.

That’s what happened here. Property owners obtained just compensation judgments against the Sewerage and Water Board of New Orleans. The judgment withstood the SWB’s…

Continue Reading Fieri Facias: You Take, You Pay – Providing Just Compensation After A Taking Is A Ministerial Duty

GK
Aloha, Gideon

This is one of those posts I wish I didn’t have to write.

I’m sad to report that our teacher, mentor, and friend Professor Gideon Kanner passed away on Wednesday, November 22, 2023, in his 93d year.

Appellate advocacy, eminent domain, and land use legend. Holocaust survivor. Prolific author and speaker. Argued Agins v. Tiburon at the Supreme Court. Educated generations of dirt lawyers at Loyola LA Law School. And even more through various professional legal education programs at Practicing Law Institute, American Law Institute-American Bar Association (ALI-ABA), and ALI-CLE, among others. One of the two lawyers for whom the Brigham-Kanner Property Rights Project at William and Mary Law School is named.

A person with sharp moral and intellectual clarity. Someone who never, ever — ever — gave up or gave in. We could go on and on, but we shall keep it short, because his legacy is…

Continue Reading Farewell To A Giant – Gideon Kanner (1930-2023)

A big thank you to Clint Schumacher and his Eminent Domain Podcast for having us on the program (this is the sixth time, not that we’re counting). We joined Clint to chat about three breaking issues in eminent domain (highlighted by the intriguing cases we discuss), as well as to preview the upcoming 41st ALI-CLE Eminent Domain Conference, February 1-3, 2024, in New Orleans.

As Clint describes it:

Robert Thomas of Pacific Legal Foundation joins us for a review of three impactful cases that eminent domain practitioners should watch as they work their way through the courts. We also get a preview of the 2024 ALI-CLE Eminent Domain and Land Valuation Litigation Conference that will be held in New Orleans this coming February.

Click here for information and registration for the ALI-CLE conference.

Please share your thoughts on the show or this episode with me. I’m on X @J_Clint…

Continue Reading We (Re)Join Clint Schumacher’s Eminent Domain Podcast: Three Impactful Issues, And The 41st ALI-CLE Conference (New Orleans, Feb 1-3, 2024)

Screenshot 2023-11-27 at 08-13-43 Supreme Court of Canada - SCC Case Information - Webcast of the Hearing on 2023-11-16 - 40302
“Good morning, Justices”

You know that from time to time — mostly thanks to our friend and colleague Shane Rayman and his firm — we cover property goings-on north of the border when a good property rights case comes before the Supreme Court of Canada (see here and here for past examples).

Well, here’s another one, this time involving “de facto [or constructive] expropriation” (or, as we call it, “regulatory takings”), where the question before the Court is how compensation is calculated after it was determined that the application of very restrictive zoning to otherwise developable property was is deemed a taking. Must valuation include or exclude the effects of the challenged regulation?

The oral arguments in the case were held last week (click here to watch a recording [English or French, your pick]).

Applying what in Canada is known as the “Pointe Gourde principle” — the…

Continue Reading La Cour suprême du Canada Considering Effect Of “The Scheme” On Takings And Compensation

“No need to ask, he’s a smooth operator…”

Here’s the amicus brief we just filed in a case we’ve (obviously) been paying close attention to.

This is Devillier v. Texas, the case in which the Supreme Court is considering what does the it mean when it describes the Just Compensation Clause as “self-executing?” Do you need statutory authorization in order to bring a takings or just compensation claim, or can you sue directly under the Constitution? Does it matter that Congress has adopted a statute which authorizes damages suits against local governments (“persons”), but has not expressly done so against states qua states?

We say no and our brief explains why.

Note that there’s no Eleventh Amendment issue here, because Devillier filed his federal claims in a Texas court, and it was the State of Texas that removed it to federal court (thus forfeiting any 11A claim, because…

Continue Reading “The courts don’t need Congress’s permission to enforce the self-executing constitutional right to just compensation.”

ALI-CLE brochure cover page

Here’s the brochure and the full agenda and registration information for the upcoming ALI-CLE Eminent Domain and Land Valuation Litigation Conference at the JW Marriott in New Orleans, February 1-3, 2024.

This is the long-running nationally-focused conference on all things eminent domain, takings, valuation, and related. We have three tracks, from which you can choose a la carte – Practice, Substantive, and Condemnation 101:

For over 40 years, we’ve been bringing eminent domain practitioners together to examine the latest issues, engage in healthy debate, and get the information they need to stay current in their practice. This year – our 41st – is THE perfect time to reunite with your eminent domain colleagues. There will be plentiful opportunities to meet and mingle with the faculty and other registrants – throughout the conference and at evening social events. Attendees come back year after year to make new friendships and renew…

Continue Reading Here’s The Program For The 41st ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Feb 1-3, 2024, New Orleans

NCSCT

Here’s the latest on a kind of strange case we’ve been following.

Our case starts off as a somewhat typical public use challenge. After a developer failed to negotiate purchase from Rubin an easement for a sewer line to serve a nearby housing project, the developer enlisted the Town of Apex to lend a hand.

Next, whaddaya know, the Town is taking the easement for the developer’s sewer line from Rubin by eminent domain, with the developer paying the compensation and the costs of the lawsuit. If this sets off your private benefit radar, you’d be right. The North Carolina courts sure thought so. No public use. 

You might think that this would signal the end of the matter. We know what would happen if the Town had affirmatively abandoned the taking. In that case, it wouldn’t be off the hook if it walked away, and although it would…

Continue Reading Midnight Quick Take: NC Supreme Court To Consider Remedies For Failed Takings – What Happens When A Taking Lacks A Public Use, But They’ve Already Seized The Property?