Land use law

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Orange-fruit-2When the state purposely destroys healthy citrus trees as part of a program to address citrus canker, it must pay the owners of the trees just compensation.

In Dep’t of Agriculture & Consumer Services v. Borgoff, No. 4D08-4474 (May 12, 2010), the Florida District Court of Appeal (Fourth District) affirmed an $11 million class action jury verdict ordering the Department of Agriculture to pay for the more than 100,000 non-commercial trees it cut down and destroyed in Broward County. The Department’s eradication program destroyed any citrus tree within 1,900 feet of any tree found with citrus canker. The court concluded this was a taking: 

Cutting down and destroying healthy noncommercial trees of private citizens could hardly be more definitively a taking. Government has regulatory power for the very purpose of safeguarding the rights of citizens, not for destroying them.

Slip op. at 6 (footnote omitted) (emphasis added). The court…

Continue Reading Florida Court Of Appeal: State Must Pay When It Destroys Healthy Orange Trees

SCOTUSblog has listed Sharp v. United States, No. 09-820 as a “petition to watch” for the Court’s conference today.

May 17, 2010 Update: cert. denied.

In that case, the property owners are asking the U.S. Supreme Court to review the Ninth Circuit’s decision in United States v.  Milner, 583 F.3d 1174 (9th Cir. 2009), which held that a littoral owner was liable for trespass in waters held by the federal government for the benefit of the Lummi Nation, and for violation of the Rivers and Harbors Act formaintaining a “shore defense structure.” The structure was built onprivate fast (dry) land, but the shoreline eventually eroded up to it.

In the opinion, detailed in this post, the Ninth Circuit held that “both the tideland owner and the upland owner have a right to anambulatory boundary, and each has a vested right in the potential…

Continue Reading Petition To Watch: Is A Littoral Owner Trespassing When The Shoreline Erodes?

“Our decision today recognizes that snow and snowplowing are facts of life in Vermont, and we do not find a cause of action when defendant has done nothing more than protect public safety by plowing the roads that it has an ongoing legal duty to plow.”

Ondovchick Family Ltd. P’ship v. Agency of Transportation, No 2009-182, at ¶ 22 (Apr. 30, 2010).

There you have it: one of those decisions where its really not productive to dig deeper, or to try and reconcile it with other cases. You know the kind of decision we’re talking about, the kind where the opinion begins with “The widow Plaintiff…” and that you don’t need to read much further to know the result the opinion is going to reach, or why.

Oh, we could try and analyze the Vermont Supreme Court’s opinion in Ondovchick more closely. But that might be a…

Continue Reading Vermont Supreme Court: Snow Is A Fact Of Life In Vermont

A couple of links following up on our recent post about City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010).

That’s the case in which the Supreme Court is being asked to review a decision by the Wisconsin Supreme Court (768 N.W.2d 749 (Wis. 2009)) applying the “undivided fee” rule to conclude that a valuable long-term $1 per year lease was worthless as a matter of law. The VFW was prohibited by the trial court from introducing any evidence of value since under the undivided fee rule, the jury could only determine the value of the fictional fee simple interest. The sharply divided Wisconsin Supreme Court affirmed. [Disclosure: we filed an amicus brief, noted below.]

The cert petition is here. The amicus brief we filed for National…

Continue Reading More About The “Undivided Fee Rule” Cert Petition

Yesterday, I had the pleasure of speaking to members of the Western Manufactured Housing Communities Association about some of the legal issues facing their businesses, and property owners in general. Here are the links I mentioned:

  • Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir. 2009) (en banc review ordered Mar. 12, 2010). This is the very important case regarding the city’s mobile home rent control ordinance, which the Ninth Circuit panel concluded worked a facial taking of property under Penn Central. We have the briefs which have been filed for en banc review, and will be posting them in the upcoming days. Most definitely a case to watch.
  • A recent opinion from the California Court of Appeal in another rent control

…
Continue Reading Links From WMA Presentation – Regulatory Takings, Rent Control, And Guggenheim

5330205_big My ABA State & Local Government Law colleague Andy Gowder has posted on his blog Grounded, a report and summary of the recent Miami panel discussion of Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights (Mar. 2010; $95 regular price; $75 for SLG members). 

Takings International is a comparative study of how 13 jurisdictions worldwide treat what we in the U.S. call “regulatory takings.” Visit this page for the Table of Contents and a pdf of Chapter I (scroll to the bottom of the page). Our book review is here.

I concur with Andy’s assessment that it was a fascinating and informative session (and I disclaim any bias resulting from the fact I served as moderator).

The panelists highlighted the issues discussed in the book, and Andy reports:

Professor Alterman began her remarks by pointing out that though no other country comes close to…

Continue Reading “Takings International” Panel Report

Yesterday, we filed this motion for leave to file brief amicus curiae and a copy of the proposed brief in support of the application for writ of certiorari which asks the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009).

In Maunalua Bay, the ICA held that “Act 73” (codifed here and here) was a taking. In the Act, the legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land.

The ICA, however, held that the Act was a taking only of existing accreted land, but was not a taking of what the ICA called “future accretions.” The court held that because “future” accretion might…

Continue Reading Amicus Brief In Hawaii Beach Taking Case: “Future” Accretion Is A Present Property Interest

The property owners have filed an application for a writ of certiorari asking the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009).

Disclosure: we filed an amicus brief supporting the property owners in the ICA, available here, and will be submitting a motion for leave to file an amicus brief urging the Supreme Court to accept the application for cert.

In its opinion, the ICA held that “Act 73” (codifed here and here) was a taking. In the Act, the legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of existing accreted land, but…

Continue Reading Cert Application In Hawaii Beach Taking Case: Legislative Reassignment To The State Of The Right To Future Accretion Is A Taking

On Friday, April 30, 2010, as part of the Spring Meeting of the ABA’s Section of State and Local Government Law, I’ll be presenting a paper Recent Developments in Challenging the Right to Take in Eminent Domain (SSRN posting here) during the “Land Use Hot Topics” program.

If you are in South Florida, the in-person program will be at Holland & Knight, 701 Brickell Avenue, Miami, from 12:30 – 2:00pm. If you can’t be there in person, you can sign up for the “virtual” meeting (a teleconference and live audio webcast) here. Either way, hope you can join us.

The program will also cover such topics as Religious Land Use Update, Recent Developments in Comprehensive Planning, The Miami Beach Art Deco District, Official Immunity in Making Local Zoning Decisions, and Uses and Limits of the Fair Housing Act and the Americans With Disabilities Act. Registration also includes two…

Continue Reading Upcoming: Land Use Hot Topics Program (In Person And Online)

A new opinion from the Indiana Supreme Court that reminds us somewhat of the “bizarre condemnation” case now awaiting decision in the New Jersey Supreme Court. In Murray v. City of Lawrenceburg, No. 15S04-0907-CV-310 (Apr. 20, 2010), the court held the claims of a property owner who asserted that the government wrongly occupied her land and leased it to another are subject to Indiana’s six year statute of limitations for inverse condemnation claims. 

Update: here’s another summary of the opinion from the Indiana Lawyer Daily.

The plaintiffs alleged they owned a 3/4 acre parcel in Lawrenceberg. In 1995, however, the Central Railroad Company gave the city an affidavit that it owned the property, and quitclaimed its interest to the city. The city then leased it to a casino. In 2005, the plaintiffs filed a lawsuit seeking to quiet title in the parcel to themselves, and …

Continue Reading Indiana Supreme Court: Inverse Condemnation Remedy Exclusive When Government Seizes Land Without Condemnation