Regulatory takings

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The case that seemingly wouldn’t end — Coy Koontz, Jr.’s continuation of his late father’s case against the St. Johns River Water Management District over the WMD’s demand that they “pay to play” — has ended with its eighth appellate decision (including the now-famous visit to the U.S. Supreme Court), with another win for Koontz.

In St. Johns River Water Management District v. Koontz, No. 5D06-01116 (Apr. 30, 2014), the Florida District Court of Appeals made short work of the WMD’s argument that there were some loose threads left over from the prior decisions. The opinion doesn’t say much about the substantive law, except to say “we said this all before, and we haven’t changed our minds.” 

Because our decision in Koontz IV is entirely consistent with the decision of the United States Supreme Court, we adopt and reaffirm Koontz IV in its entirety and affirm the judgment below. We…

Continue Reading Fla App In Koontz VIII: We Were Right Before, Koontz Wins Again

Back in October, we had the honor of moderating a discussion about the ripeness issue in takings law at the 40th Anniversary Symposium on The Takings Issue at Touro Law School (see here and here for more). Professor Vicki Been and Pacific Legal Foundation’s J. David Breemer were the panelists, each weighing in on how Williamson County came to be, and what future the rule may have, if any. 

The Touro Law Review has now published Dave’s article, “The Rebirth of Federal Takings Review? The Courts’ ‘Prudential’ Answer to Williamson County’s Flawed State Litigation Ripeness Requirement.” Here’s the summary:

This article addresses recent developments in the law of takings arising from the courts’ application of the rule, articulated in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 185 (1985), that a property owner must sue for damages in state court to ripen a Fifth Amendment takings …

Continue Reading New Article Of Note: The Rebirth of Federal Takings Review? The Courts’ ‘Prudential’ Answer to Williamson County’s Flawed State Litigation Ripeness Requirement

The North Carolina Supreme Court has issued its opinion in Beroth Oil Co. v. North Carolina Dep’t of Transportation, No. 390PA11-2 (Apr. 11, 2014). That’s the case which we’ve been following about the class-action worthiness of of a case in which the N.C. DOT effectively blighted a huge swath of land by identifying it as a future highway, and then doing mostly nothing to acquire it, even though by virtue of a parcel’s identification on the map, the owner was prevented from obtaining building permits, or undertaking other development of the land.

The Supreme Court briefs are posted here, and we also recently posted NCDOT’s summary of the effect of a “protected corridor,” which is the DOT’s way under North Carolina’s Map Act of keeping property that it wants for future highways from being developed in the interim (we thought it should be called a “taking”). More background on the case here…

Continue Reading N.C.: “Map Act” Inverse Cases Must Be Prosecuted Individually, Not As A Class

Here’s the latest from the Federal Circuit, a decision involving regulatory takings, the big auto bailout, and the nature of property rights. A&D Auto Sales, Inc. v. United States, Nos. 13-5019, 13-1520 (Apr. 7, 2014)

In the TARP and the related bankruptcy cases, the federal government bailed out the two big American auto manufacturers, General Motors and Chrysler. Part of the $55 billion assistance deal required GM and Chrysler to terminate the franchises of many dealerships. Not surprisingly, those dealerships didn’t care for the idea that their businesses were not “too big to fail,” and objected in the Court of Federal Claims to the idea that they should be sacrificed to the greater good with a takings claim against the federal government. 

Although the automakers were already reducing their dealer ranks over time and GM’s initial viability plan had included additional dealer terminations, the government determined that…

Continue Reading Fed Cir: Big Auto Bailout Could Be A Taking

For those of you who are members of the ABA, here’s a tangible member benefit.

On Wednesday, April 9, 2014, tune in for a free webinar, “Rails-to-Trails and the Impact of Brandt Revocable Trust v. United States.” The program is sponsored by the Real Property, Trusts & Estates Legal Education and Uniform Laws Group. 

Here are the details:

ABA-RPTE Professors’ Corner – A FREE monthly webinar featuring a panel of law professors, addressing topics of interest to practitioners of real estate and trusts/estates

This is a One Hour WEBINAR

Wednesday, April 9, 2014
12:30 pm Eastern / 11:30 am Central / 10:30 am Mountain / 9:30 am Pacific

Register online here.  

March’s Program: “Rails-to-Trails and the Impact of Brandt Revocable Trust v. United States”

Professors’ Corner is a monthly webinar (on the second Wednesday of each month) featuring a panel of law professors, discussing recent cases or issues of interest to real estate or trust and estate practitioners and scholars.

Speakers:

  • Professor Danaya C. Wright, University of Florida Levin College of Law
  • Professor Michael Allan Wolf, University of Florida Levin College of Law

On March 10, 2014, the U.S. Supreme Court decided Brandt Revocable Trust v. U.S., involving the interpretation of the General Railroad Right-of-Way Act of 1875. The case involved a railroad right of way obtained in 1908, crossing land conveyed by the U.S. to the Brandt family in a 1976 land patent that did not specify what would happen if the railroad later relinquished its right of way (which occurred some years later). In the case, the U.S. sought to quiet title to the abandoned right of way, including the portion that crossed the land conveyed by the Brandt patent. Reversing the Tenth Circuit, which had affirmed a grant of summary judgment for the U.S., the Supreme Court held that the right of way was only an easement and was extinguished when the railroad abandoned it. The decision has already created some substantial consternation regarding its potential impact on the Rails-to-Trails movement and recreational trail development along abandoned rail corridors.

We’re registered, and you should too.
Continue Reading Mark Your Calendars: “Rails-to-Trails and the Impact of Brandt Revocable Trust v. United States” (4/9/2014) – Free To ABA Members

Check out this Power Point presentation, sent our way by a North Carolina colleague. It’s an explanation by the NC Department of Transportation of a “protected corridor,” a “[t]emporary restriction on development placed upon properties located within a proposed highway alignment.”

And what, pray tell, is the purpose of this protected corridor? To allow the NCDOT breathing room to come up with an orderly plan of development or something similar that is often used to justify moratoria? No, to “[h]elp[] insure availability of proposed locations for large-scale projects…”

In other words, to stop development in anticipation of NCDOT eventually — maybe, someday — condemning the land for a highway.

You see, those darn developers, they keep building subdivisions in the path of our future beltways (the nerve), so we have this plan to protect the land so we might eventually take it at reduced acquisition and relocation…

Continue Reading What Is A Protected Corridor? A Taking, Or At Least It Should Be

Update: there’s been an en banc petition filed.

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An interesting discussion is going on about so-called “judicial fact finding” in the legal blogs, triggered by the acknowledgement by Seventh Circuit Judge Posner that he did an “experiment with a novel approach” in a recent case:

The issue in the case was whether the time poultry workers spent changing into and out of their sanitary gear for their lunch breaks must be compensated. The old “donning and doffing” issue from labor law. [Takings sidebar: federal judges constantly tell us that they want no part of land use and takings cases — despite their plain textual basis in the Fifth…

Continue Reading On “Judicial Factfinding”

Remember the Lost Tree case? That’s the one where the Federal Circuit concluded that a single parcel owned by the plaintiff was the relevant parcel against which the impact of the Corps of Engineers’ denial of a § 404 wetlands dredge and fill permit is to be measured. The court overturned a Court of Federal Claims decision which concluded the relevant parcel was that single plot plus an additional nearby lot, plus “scattered wetlands in the vicinity” also owned by the same owner. 

The case got remanded to the CFC, which now has issued its opinion determining the loss of economic value caused by the denial of the 404 permit. The CFC concluded that the “after” value was $27,500, and the “before” value was $4,245,388, a diminiution in value of a whopping 99.4%. Lost Tree Corp. v. United States, No. 08-117L (Fed. Cl. Mar. 14, 2014).

The court held that…

Continue Reading CFC: Denial Of Wetlands Dredge And Fill § 404 Permit = Taking = $4.2M Just Compensation

It’s Friday, so we’re slacking a bit on the blogging. But our colleagues at the Nossaman firm have given us a couple of good pieces for our reading enjoyment.

  • First is “9th Circ. Simplifies Enviro Process For Transit Projects,” by Robert D. Thornton. If his name sounds familiar, it’s because he’s the lawyer who represented the City and County of Honolulu in its succcessful defense of a federal lawsuit. The Ninth Circuit and the District Court recently sided with the City on the project (see our summary of the Ninth Circuit and the District Court rulings), and the plaintiffs have stated that they are not going to seek further review. In other words, this is probably the final substantive chapter in the major legal challenges to the Honolulu rail project. Mr. Thornton notes that the decision is one “of national importance for transit and highway projects” because

…
Continue Reading Worth Reading – The Last Word On Honolulu Rail, And 2013 Eminent Domain Year In Review

Professor Richard Epstein shares his insight about the U.S. Supreme Court’s recent 8-1 decision in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (Mar. 10, 2014).

The issue in the case was whether the federal government retained an “implied reversionary interest” when it issued railroad patents to private landowners, or whether these grants were subject only to a railroad easement. The Court concluded they were easements, which means that they were extinguished when the railroad ceased using them as railroads. 

Professor Epstein joined an amicus brief filed in support of the property owners in the case, which argued that a contrary ruling would violate “the special need for certainty and predictability where land titles are concerned.” 

Listen to the podcast here. Or go to this page and follow the link from there. 

Related articles
SCOTUS Benchslap: Railroad Right Of Way Is An Easement, Just Like We Said A Long

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Continue Reading Professor Epstein On SCOTUS Rails-To-Trails Decision