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Here are the links and references to the cases we spoke about today at our opening session on the national trends in eminent domain law at the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation Conference in San Diego. 

We again have a record attendance, and a good number of new attendees. If you aren’t here now, we’re sorry you didn’t make it. But fear not: ALI-CLE has already set the date and location for the 2018 Conference: save the date on your calendars now — January 25-27, 2018, Charleston, South Carolina, at the Francis Marion Hotel. 

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Continue Reading Day 1, 2017 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, San Diego

HSBA 2017 Land Use Conference

To supplement your written materials for the 2017 Hawaii Land Use Conference, here are the decisions and other materials which we spoke about this morning at the 2017 Hawaii Land Use Conference:  

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Continue Reading Notes And Links From Today’s Hawaii Land Use Conference Session On Reg Takings

There have been a lot of takings and takings-related decisions coming out of the Court of Federal Claims lately, and we’ve held off on posting them individually. So to start off your New Year, here is a pop quiz.

Your task: guess whether the CFC held there was a taking, or no taking (answers below):

Case 1: Sheikh Djibouti 

  • Global Freight was a subcontractor providing services to a Navy base in Djibouti. The Navy ordered it to move its vehicles from the Navy base into Djiboutian territory, after which the Djiboutians seized the vehicles. Taking or no taking? 
  • Taking. Or at least not “no taking.” In Global Freight Systems, Co. v. United States, No. 15-378C (Fed. Cl. Dec. 29, 2016), the CFC denied the government’s motion to dismiss for failure to state a claim (which argued that it was the Djiboutians and not the U.S. which took the

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Continue Reading Court Of Federal Claims Pop Quiz: Taking Or No Taking?

We’ve had bridges on our minds lately. Plus, we’ve been meaning to post the Nebraska Supreme Court’s opinion in Strode v. City of Ashland, No. S-15-956 (Oct. 28, 2016) for a while, and it is coincidentally about a bridge. So the title to this post came to us quickly, and naturally. But writing up the case didn’t.

But while we dawdled, Dean Patty Salkin wrote the case up on her blog, Law of the Land. Which has now saved us the effort of writing the case up in its entirety, and we suggest you start by reading her post for the background and the court’s ruling. 

The case involved two inverse condemnation claims brought by husband and wife property owners, asserting the City’s zoning regulations worked a taking of their land in two ways. They first that the regulations prohibited their use of the land for their…

Continue Reading Nebraska: Inverse Condemnation Claims A Bridge Too Far

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 ALI2017

We’ve teased some of the details on the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation and Condemnation 101 Conference, to be held at the Westin San Diego, January 26-28, 2017, but here are the details you’ve been waiting for.

This is the “big one,” our annual 3-day festival of all things eminent domain, property, takings, inverse condemnation, and just compensation. Truly national in scope, this is the 34th annual edition, and the one conference you must attend. Our 2016 conference in Austin was one of the best in years, and we’re on the way to replicating it in 2017, with a great venue in an exciting city. 

Look for the web and printed brochures to show up in your mailboxes, but in the meantime, here are some of the highlights (we’ll post more in the next few days):

  • Relocation, relocation, relocation: we are featuring two sessions on this

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Continue Reading Details: ALI-CLE Eminent Domain And Land Valuation Conference – San Diego, January 26-28, 2017

Denials of rehearing and motions for en banc review from a state intermediate appellate court generally do not catch our attention. But Ganson v. City of Marathon, No. 3D12-777 (Sep. 14, 2016) is the exception to that rule.

This is a long-running regulatory takings dispute between property owners in the Florida Keys — who are making a Lucas claim that the City’s regulations prohibit economically beneficial use of their island — and the appropriately-named City of Marathon (see here and here, for example). 

The majority ruling is just what you’d expect in a disposition such as this: a one word per curiam “Denied,” with 6 judges concurring. The reason we’re posting the ruling, however, is the 3-judge dissent, which starts off like this:

This is a significant regulatory takings case, the holding of which is that a local government can regulate private property to an extent that is…

Continue Reading Wasting* Away Again In Margaritaville: En Banc Denied In Lucas Takings Case, Over Compelling Dissent

Entry statutes are in the news lately. As we reported here for example, the California Supreme Court recently saved California’s entry statute from unconstitutionality by implying a requirement for a jury trial (and other eminent domain protections) when the entries which the condemnor seeks to undertake constitute takings.

In that case, the party seeking entry proposed to bore and fill holes on the property. Which meant that the entries were undoubtedly permanent physical appropriations. This triggered the requirement that the entry conform to the eminent domain process, such as having a jury determine just compensation. Thus, the court understood that in the absence of its reformation of the statute (i.e., rewriting it), the entry process as applied would be unconstitutional. We’ll save for another post our commentary on the California Supreme Court’s approach.    

But such details didn’t concern the North Dakota Supreme Court in its opinion applying that…

Continue Reading ND: Entry Statutes Are Not Takings, Even If There’s A Physical Invasion

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Come on, you can admit it: reading judicial opinions about grammar rules and legislative history is about as exciting as watching paint dry. Or maybe it is more appropriate in this case to talk about old paint peeling. Because the Oregon Supreme Court’s opinion in Lake Oswego Preservation Society v. City of Lake Oswego, No. S063048 (Aug. 4, 2016) is about historic preservation, and we get grammar lessons and lege history in spades. 

The issue in the case was “If a local historic designation is imposed on a property and that property is then conveyed to another owner, may the successor remove that designation under ORS 197.772(3)?” Slip op. at 117. Short answer: no.

The property in question was a “rare and valuable example of a territorial Oregon residence” and the surrounding parcel, and in the 1980’s the property caught the eye of the local preservationists. The…

Continue Reading Oregon: Owner’s Right To Remove Historic Designation Vanishes When Property Transferred

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It’s a good day. You win your takings case in the Texas Supreme Court. True, it’s a narrow 5-4 victory, and it merely reverses summary judgment against you, which means only that you live to fight another day. But a win is a win, we always say. The decision is based on the Texas Constitution, which also means that your win is insulated from U.S. Supreme Court review. 

So it’s game over, right? 

Not so fast. Under Texas appellate procedure, a win in that court isn’t necessarily the end of the process. You need to get by a motion for rehearing as well. In our (non-Texas) experience, these things are usually exercises in futility for the moving party, at least if the goal is to get the court to change its mind on the critical issue decided. Yes, we’ve seen recon and rehearing motions granted from time to time, but only…

Continue Reading Texas Turnabout: Gov’t Development Approvals Without Flood Control Plan Isn’t A Taking