Regulatory takings

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Here’s the video of the OA held this morning (March 10, 2020) in a case we’ve been following, about the statute of limitations governing inverse claims. Maryland Reclamation Association filed an regulatory takings claim in 2013, and eventually the jury awarded a whopping $45 million in just compensation and interest. Hartford County asserted the claim was barred by the three-year statute of limitations, and the claim accrued in 2007 when the Board of Appeals administratively denied MRA’s variance request. 

The Maryland Court of Special Appeals concluded that “An inverse condemnation claim ‘accrues when the affected party knew or should have known of the unlawful action and its probable effect.'” Okay, the County responded, MRA discovered the County’s conduct in 2007 when the Board denied the variances. In response, MRA asserted that the taking must become “permanent or stabilized,” and that didn’t occur until the court of appeals affirmed the…

Continue Reading Maryland Court Of Appeals Considers Statutes Of Limitations In Inverse Condemnation: Do Appeals Toll Time?

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At the recent ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville, our colleagues, New York’s Jon Houghton and Hawaii’s Dave Day presented a very informative program on litigating regulatory takings cases. Jon is a property owner-side lawyer, while Dave is a Deputy Attorney General who represents the State of Hawaii in such cases. So it was a practical and balanced presentation.

Well, Jon and Dave are taking (pun intended) it to the next level. On Friday, April 24, 2020 at 2-3pm Eastern Time, they will be presenting “Strategies for Litigating Regulatory Taking Cases” in a webinar produced by ALI-CLE. This isn’t simply a repeat of their Nashville program, but they will be exploring in more detail the practicalities of building and defending these difficult cases. 

Here’s the description of the program:

The U.S. Constitution provides that private property may not be taken for public use

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Continue Reading Mark Your Calendars (Friday, Apr 24, 2020): ALI-CLE Webinar – Strategies for Litigating Regulatory Taking Cases

You recall that a short while ago, in Oil States Energy Servs., LLC v. Greene’s Energy Group, LLC, 138 S. Ct. 1365 (2018), the Supreme Court held that patents are a form of “public property” (more like a government-created entitlement), and thus Congress can withhold the usual Article III tribunal and a jury when the validity of that property is challenged. The majority held that “inter partes review,” under which the Patent and Trademark Office administratively reconsiders (and may cancel) previously-issued patents, does not run afoul of the Constitution because a patent is a “public right,” and therefore more like a grant of a franchise than classic common law property.

Although the Court validated inter partes review, it left open the question of whether a patent owner who has her patent (in thousands of cases, these patents were issued before inter partes review was adopted) invalidated via…

Continue Reading New Cert Petition: Are Patents “Property” Protected By The Takings Clause (Is Inter Partes Review A Taking)?

We were all set to take a deeper dive into the Court of Federal Claims’s recent opinion in the “downstream” Harvey flooding cases (we could not do so at the time the opinion was issued last week because we were tied up doing real lawyer stuff), when our Reno, Nevada colleague Steve Silva (who most recently was on the faculty at the ALI-CLE Conference in Nashville) beat us to the punch.

On his Taking Nevada blog, Steve has posted “Major flood decision in Texas turns on Divine Intervention” —

Analyzing and comparing tort to taking is difficult. A tort is generally seen as something wrongful. A private injury committed by one person against another. A classic “taking” by exercising the power of eminent domain in direct condemnation to acquire land and pay compensation is not a wrongful act. It merely is.

…

Further complicating things, the clearest…

Continue Reading Steve Silva (Taking Nevada) On Flood Takings, Torts, And Tortes

They’re coming so fast, we can hardly keep up.

Today, in Castillo v. United States, No. 19-1158 (Feb. 20, 2020), the U.S. Court of Appeals for the Federal Circuit resolved a common issue in rails-to-trails takings cases: when a property owner holds title and her deed describes the land as bordering on a railroad line or other easement (or the property is described as a lot in a plat that shows the lot’s “property line” as adjoining a road or railroad easement), does the owner of the adjoining fee estate own the fee interest up to the “centerline” of the right of way?

Applying Florida property law, the court held yes, there is a presumption that the owner’s title goes up to the “centerline.” The court reversed the Court of Federal Claims’s conclusion that the presumption did not apply, and that deeds describing the property as a “less…

Continue Reading Federal Circuit: When Road Is The Property Boundary, Owner’s Fee Goes Up To The “Centerline”

Here’s the latest in a long-running, multi-forum takings case about the development of affordable housing on the Big Island of Hawaii. 

Last we saw, the District Court awarded nominal compensation ($1), after the jury concluded that the State of Hawaii took Aina Lea’s property. The parties cross-appealed: the State argues the district court should have granted the State’s JMOL on liability, while the property owner appealed the $1 judgment. 

Today, the Ninth Circuit reversed the District Court’s ‘s opinion, holding that the district court should have ruled in the State’s favor on liability. The court remanded the case for entry of judgment in the State’s favor (meaning even the $1 just compensation judgment is gone). Bridge Aina Lea, LLC v. State of Hawaii Land Use Comm’n, No. 18-15738 (Feb. 19, 2020).

We’re tied up doing lawyer stuff today, so can’t read or analyze the decision in detail. But once…

Continue Reading CA9: Remember That $1 The Court Awarded You For The Jury’s Finding Of A Regulatory Taking? We’re Taking That Away, Too

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We’re doing lawyer things this week, so can’t do much blogging, so we’re going to just leave this here, the Court of Federal Claims’s Opinion and Order in the case seeking compensation for a taking by the “downstream” owners whose lands were flooded by the U.S. Army Corps of Engineers in the aftermath of Hurricane Harvey. 

Short story: no property, no taking. 

How does the following square with the same court’s (but a different judge’s) ruling about the “upstream” owners?

Two questions must be asked. First, what property did the government take? Second, how did the government take that property? The answers to these questions go to the heart of the Constitution’s taking clause. The waters that actually caused the invasion came from the unprecedented floodwaters from Hurricane Harvey when it stalled over Houston for four days, dumping approximately thirty-five inches of water on Harris County. See Plaintiffs’ Appendix (hereinafter…

Continue Reading CFC: God Forced Corps Of Engineers To Open Floodgates

As we briefly noted in this post, before we departed the ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville, we just had to stop by the subdivision that was at issue in the Williamson County litigation. 

Frankly, there’s nothing especially special or noteworthy about this place, and only takings nerds will truly appreciate these pics. But given our propensity to make “takings pilgrimages” to the sites of famous property cases (see here (Claude Monet), here (Loretto), here (Chicago, B & Q RR), here (Dolan), here (Seneca Village), here (High Line), here (Hadacheck), and here (Nollan), for example), we just could not resist. 

So dig it, takings mavens. 

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There’s a golf course, of course. (There’s always a golf course.)

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“Temple Hills” beats “Glengarry Glen Ross”

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A panorama of the main drag

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Up the street 

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Down the Continue Reading Williamson County, In Pictures

You know how the process is supposed to work. A condemnor exercises its eminent domain power and files a lawsuit to take property for public use. If the owner believes the condemnor’s price is too low, the court adjudicates the just compensation that must be paid. As we know, the point of that lawsuit is to establish the price. If the price eventually adjudicated is too dear (from the condemnor’s perspective), it isn’t required to acquire the property (unless, in some jurisdictions, it has taken advantage of the quick-take or immediate possession process). But if the condemnor wants the property, it must pay the adjudicated compensation. So far, so good.   

But what about those cases where the court adjudicates the price the condemnor must pay to acquire the property, and the condemnor actually takes the property — but the condemnor does not actually pay the compensation adjudicated by the…

Continue Reading Does A Property Owner Have A § 1983 Claim If A Condemnor Doesn’t Pay A Just Comp Judgment In A Reasonable Time?

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Please mark your calendars and join us next Tuesday, February 11, 2020 at 12:30pm ET for the free (for members of the ABA’s Real Property, Trust and Estate Section) webinar, the monthly “Professors’ Corner.”

This one will be on the aftermath of Knick v. Township of Scott, 139 S. Ct. 2162 (2019), in which the Supreme Court formally overruled the “state procedures” ripeness requirement in federal regulatory takings cases. 

We shall be speaking about the case and what’s next along with Professors Stewart Sterk and Michael Pollack (moderated by Professor Shelby D. Green). Here’s the summary of the webinar from the ABA website:

Last term, in Knick v. Township of Scott, the Supreme Court overruled the long-standing requirement that state takings claims first be litigated in state courts. The Court held that a property owner has an actionable takings claim when the government takes property without paying for…

Continue Reading Tuesday Feb 11, 2020: Professors’ Corner – The Supreme Shift in Takings Litigation – Knick v. Township of Scott