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This just in: In Los Angeles County Metro. Trans. Auth. v. Alameda Produce Market, LLC, No. S188128 (Nov. 14, 2011), the California Supreme Court held:

Under California’s “quick-take” eminent domain procedure, a public entity filing a condemnation action may seek immediate possession of the condemned property upon depositing with the court the probable compensation for the property. (Mt. San Jacinto Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 653 (Mt. San Jacintothe lender’s withdrawal of a portion of the deposit constitutes a waiver of the property owner’s claims and defenses, except a claim for greater compensation. We find that the Court of Appeal‘s conclusion is inconsistent with the relevant statutory language and framework. We therefore reverse the Court of Appeal’s judgment.

Slip op. at 1-2 (footnote omitted).

We’ll review the opinion and post more when we get a chance. But this looks about right.

Continue Reading Cal Supremes: Lender’s Withdrawal Of Condemnation Deposit Does Not Waive Property Owner’s Defenses

Been tied up finalizing one brief and drafting another, so haven’t had time to post, but here’s what we’re reading today:

  • Via the Land Use Law Prof blog comes notice of Professor Robert Ellickson’s latest article, on The Costs of Complex Land Titles: Two Examples from China. This is the paper he presented at the recent Brigham-Kanner Property Rights Conference in Beijing. His presentation and paper generated a lot of reaction from the other scholars in attendance, and was one of the high points of the conference.
  • A preview of the upcoming California Supreme Court oral arguments (Nov. 10, 2011) on the future of redevelopment in the Golden State, from the California Eminent Domain Report.
  • More from California,

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Continue Reading Monday Reading

This has been a pretty good week for my St. Louis colleague Thor Hearne.

First, he obtained summary judgment in the Court of Federal Claims for the property owners in a rails-to-trails case, Dana R. Hodges Trust v. United States, No. 09-289 L (Oct. 25, 2011). Next, his Cardinals come back from the edge to take the World Series. And now comes Rogers v. United States, No. 07-273L (Oct. 31, 2011), another good decision for property owners from the CFC. 

Rogers involves the appraisal standard applied in a partial takings case. As Thor writes:

The case involves a partial taking of an easement. Under the National Trails Act the federal government converted an abandoned railroad easement into a public recreational trail. Under Florida law the owner of the fee estate had the right to exclusive and unencumbered use and possession of their land. But, the federal law…

Continue Reading Another Good Decision From The Court Of Federal Claims

Here’s a worth-reading decision from the U.S. Court of Federal Claims (the court that has exclusive jurisdiction to hear major regulatory takings claims agains the federal government), litigated and won by colleague Mark (Thor) Hearne, II.

In Dana R. Hodges Trust v. United States, No. 09-289 L (Oct. 25, 2011), the CFC concluded the federal government granted the property owners’ summary judgment on their takings claim. Rail-to-trails cases are detailed (see Preasault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) and pages 2-3 of the CFC’s opinion for the legal framework), but the short story is that the railroad easment the property owners gave the federal government many years ago does not extend to its use as a recreational trail:

The court finds that the railroad’s easements in these Plaintiffs’ properties in the northern segment were for railroad purposes and that, for the same reasons…

Continue Reading Rail To Trail Fail: CFC Finds A Taking In A Railway Conversion

Save the date: on Thursday, December 1, 2011 (1:00pm-2:30pm EST, 10:00am-11:30am PST) we’ll be presenting the on-line seminar “Eminent Domain: Redevelopment Challenges for Local Governnment – Navigating Federal Funding Requirements, Challenges for Public Utilities in Right-of-Way Projects, and Objections to Taking for Public Use.“

Joining me are colleagues Anthony Della Pelle (McKirdy & Riskin – New Jersey), J. Casey Pipes (Helmsing, Leach, Herlong, Newman & Rose – Alabama), Rick E. Rayl and Bradford Kuhn (Nossaman – California), and Mark M. Murakami (Damon Key Leong Kupchak Hastert – Hawaii).

Each member of the faculty should be well-known to our readers: Tony publishes the New Jersey Condemnation Law blog and is a frequent speaker at the annual ALI-ABA eminent domain program. Casey is with the Owners’ Counsel member firm from Alabama and Co-Chair of the ABA Litigation Section’s Condemnation, Land Use, and Zoning Law Committee. Rick and Brad produce…

Continue Reading Upcoming National Webinar – Eminent Domain: Redevelopment Challenges for Local Government

Civil Beat‘s recent story “Mayor, City Council Move Closer to Litigation on Rail” details the potential lawsuit over who gets to control the $18 million budget of the Honolulu Authority for Rapid Transit (HART), the newly created “semi-autonomous” agency that is overseeing the $5 billion rail project. The focus of the story is substance of the dispute over whether the city council or the mayor holds the purse strings, but this passage caught our eye:

In a Wednesday press conference, Honolulu Mayor Peter Carlisle confirmed that he’d be willing to sue the City Council over its position.

Carlisle told Civil Beat that the cost of legal fees would not be passed on to taxpayers. He said he sees no conflict of interest with the city lawyers — who represent both the executive and legislative branches — representing both the City Council and the mayor on the issue.

This naturally…

Continue Reading Two Wolves And A Lamb Decide On Dinner

As we’ve mentioned here before, the City & County of Honolulu has given the green light to a new public railway, described as “a 20-mile elevated rail line that will connect West O`ahu with downtown Honolulu and Ala Moana Center. The system features electric, steel-wheel trains capable of carrying more than 300 passengers each. Trains can carry more than 8,000 passengers per hour in each direction.”

This evening, I spoke to the Waikiki Rotary about some of the legal issues that the rail project will involve, including eminent domain, environmental questions, and the relationship between the newly-created Honolulu Authority for Rapid Transit (HART), an agency within city government to oversee the project.

Here are some links on the topics I spoke about:

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Continue Reading All Aboard? Honolulu Rail Is Coming

The Center for Constitutional Jurisprudence and the Reason Foundation have joined the list of parties (us included) who submitted briefs supporting the cert petition in Guggenheim v. City of Goleta, No. 10-1125 (petition for cert. filed Mar. 11, 2011). Their brief is available here.

In that case, California mobile home park owners are asking the Court to review the decision of a sharply divided en banc Ninth Circuit which held that Goleta’s mobile home rent control ordinance did not work a regulatory taking under Penn Central. because the Guggenheims purchased their mobile home park after it was rent regulated. The brief argues:

Although Amici agree that the Ninth Circuit decision below completely misconstrued this Court’s decision in Palazzolo, the Ninth Circuit was able to do this end-run of Palazzolo because of the underlying incoherence in the test that was first set out in Penn…

Continue Reading Another Guggenheim Amicus Brief: Ninth Circuit “End-Run” Around Palazzolo

We’re going to wrap up 2010 with a post on our favorite topic, inverse condemnation. While the Ninth Circuit ended the year badly by making hash of both Penn Central and Palazzolo in a rent control case, other federal courts of appeals aren’t so predictably off-key. The Federal Circuit, which hears appeals from the U.S. Court of Federal Claims (the court with jurisdiction to hear most claims against the federal government for just compensation), is one in which a property owner has a decent shot at getting a court that understands the issues. 

The Federal Circuit has a “bright-line rule” that the six year statute of limitations begins to run on a physical takings claim in a rail-to-trail case when a property owner’s state law reversionary interest is blocked. Caldwell v. United States, 391 F.3d 1226 (Fed. Cir. 2005) and Barclay v. United States, 443 F.3d 1368…

Continue Reading Federal Circuit: Physical Taking Is Complete When Statute Of Limitations Begins To Run

Here are items we’re reading today, in no particular order:

  • Bill Ward’s thoughts on Klumpp v. City of Avalon, the recent New Jersey Supreme Court case about inverse condemnation and beach restoration. Our take here.

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Continue Reading Wednesday Potpourri: Inverse Condemnation And Beaches, Rail Takings, And More “Adult-Oriented” Land Use