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A development in the “oyster takings” case that we’ve been following as it has worked its way up to the Virginia Supreme court: that court today issued this Order, in which it awarded an appeal by Nansemond River oystermen (and the City of Suffolk’s cross-appeal) who claim that their property was taken when the City dumped sewage into the river and declared a “condemnation zone” (i.e., no oyster harvesting). Along with our William and Mary Law class, we took a field trip to the site last year (video above).

Some background, since this is a case at the intersection of property and takings law, and environmental protection. The oystermen own a lease from the state for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia is so well known for. But they were forced to bring an inverse condemnation claim…

Continue Reading Virginia Supreme Court To Consider Whether City Has The Right To Pollute Chesapeake Bay

Unlike a sibling federal court in a similar case (see that court’s TRO order below), a Florida court has declined an emergency motion challenging government officials’ coronavirus-related shut-down and stay away orders.

This is the case we’ve been following in which property owners challenge the local government’s order that they stay off beaches. The difference between this and other cases ordering people to keep away from beaches and parks is that in this case, the beaches are alleged to be private. The complaint is posted here. 

Although we do not yet have a written order denying the TRO, the court’s minute order notes, “the Court orally denies the Emergency Motion.” See also “Judge rules against Walton beach property owners who sought exemption from closure order” from the local newspaper, which reported on the hearing:

During the hearing Vinson delved, at times, into the overriding issues that Walton…

Continue Reading No TRO In Private Beach Taking-By-Shutdown Case

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Here’s yet another complaint alleging that a virus-related order is a taking, this time with an interesting twist (other complaints here, here and here).

The twist is that the plaintiff/property owners (who include former Arkansas governor Mike Huckabee) assert that they are being prevented from using their own residential property. The complaint asserts that sheriffs and code enforcement officers have trespassed on the owners’ private beaches by “patrolling,” and that the officers “have physically prevented Plaintiffs from being able to use or even set foot in their own backyards.” Complaint at 11.

The complaint seeks a declaratory judgment, an injunction, and just compensation. They also assert due process and search-and-seizure claims, that the emergency orders were preempted by other orders allowing the plaintiffs’ uses, and a claim under the Florida Constitution for breach of the right of privacy.

Will there be more of these? Bien sûr.

Complaint…

Continue Reading Private Beach Owners: Closing All Beaches Is A Physical Taking

We don’t usually post trial court decisions, but when one comes along that tees up some interesting issues and is likely to get pushed further up the food chain, we’re all ears.

That’s the case with the Eastern District of North Carolina’s order in Zito v. North Carolina Coastal Res. Comm’n, No. 2:19-CV-11-D (Mar. 27, 2020). A North Carolina property owner alleged that the application of the Commission’s shoreline setback rules are a taking, and filed a suit in federal court. Yes, this is a federal court deciding a regulatory takings claim (yay, Knick). 

The property owners did all of the right things to ripen their claim. They obtained a final agency decision (helpfully labeled the “Final Agency Decision”) and were denied a variance. And although the owners filed their federal lawsuit before Knick, by the time the District Court was considering the Commission’s motion to dismiss, …

Continue Reading Backing Back Into Williamson County: Federal Court Case Tees Up 11th Amendment Immunity For Takings

Here’s the latest in a case we’ve been following. We even visited the site with our class last year. 

Today, the Virginia Supreme Court heard argument on the petition for appeal (streaming above from the webstream, or download the mp3 here) in what we call the oyster case because it involves the property rights of Nansemond River oystermen, whose oyster beds were polluted by sewage from the City of Suffolk.

Bottom line from today’s argument: no decision yet. These arguments are short (10 minutes), only the petitioner is allowed to argue, and today’s argument did not elicit any questions from the three-Justice panel. So we wait. 

Some background, since this is a case at the intersection of property and takings law, and environmental protection. The oystermen own a lease from the state for the riverbed, which among other things, allows them to harvest some of the oysters that Virginia…

Continue Reading SCOVA Oral Argument: Does A City Have The Right To Pollute Chesapeake Bay?

Complaint front page

Make what you will of this 205-paragraph, 114 page (including 128 footnotes) Complaint, filed yesterday by the Acting Corporation Counsel for the City and County of Honolulu and a battery of outside lawyers against gasoline producers, alleging that they are responsible to pay the costs of sea-level rise and other symptoms of what the complaint calls the “climate crisis.”  

It’s a challenging read, but the fun part is in the claims for relief (fast forward to page 99), which include (for you property mavens) nuisance, private nuisance, and trespass (by flooding), as well as affirmative and negligent failure to warn of the dangers of fossil fuel products. 

Will this lawsuit go anywhere? Is a big municipal payday in the cards? Will it get to a local jury? Your guess is as good as ours. But we’ll be following along, for sure.  

Complaint, City and County of Honolulu v. Sunoco …

Continue Reading Complaint: Honolulu Sues Gas Companies (For Nuisance) To Recover The Cost Of Sea-Level Rise

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Picture 1: how normal people see pie.

Picture 2: how you see pie if you’re coming to the
ALI-CLE Eminent Domain Conference. 

If you get the above, you probably are already set to join us next week for the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville. (If not, shame on you!).

And having just reviewed the latest registration list, I can report that we have an all-time record attendance.  But there’s still room for those of you still not committed. Register here. Don’t miss out. There will be pie. Continue Reading Record Attendance (But There’s Still Time For You Last-Minute Filers) At Nashville ALI-CLE Eminent Domain Conference

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If there’s one downside to the law school experience from the teacher’s side of the lectern, it’s grading. Especially at a law school like William and Mary that has a pretty strict mandatory curve.

In an upper-division course like “Eminent Domain and Property Rights Law,” where we’re dealing with some very high-level stuff and the quality of the students is uniformly excellent, that makes for some hard choices at this time of year. But we’ve wrapped up grading, and have submitted the official scores.

Although I cannot share with you all the papers themselves, I don’t think my students would mind if I give you a sampling of the topics and titles, just so you can see how the next generation of lawyers is thinking about this area of law: 

  • One Man’s Castle is Another Man’s Parking Lot: A Homeowner’s Theory of Eminent Domain
  • Native Title: Concept and

…
Continue Reading The Circle Is Now Complete: A Sampling Of Final Paper Topics From William and Mary Law’s Eminent Domain & Property Rights Course

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We gave up long ago expecting rationality and straight-up-the-middle narratives when it comes to cases about beaches and beach access. People get kind of nuts about that for some reason. We get why. Who doesn’t love a beach? Even a beach that could serve as the location if Planet of the Apes is re-made again. Don’t believe us? See this recent video. Or this story with a picture from the 1980s. 

But we overcame our usual reluctance to dive into these stories for the latest in a case we’ve been following, as it wound the way from California’s trial and appeals courts, to the U.S. Supreme Court on a (denied) judicial takings cert petition, to the California legislature which was threatening to condemn and buy the property, to a recent unreported California appellate decision affirming a finding of no public easement, and now this, a recently-filed complaint against…

Continue Reading California Coastal Comm’n: We’re Suing Evil Rich Guy Who Is Blocking Access To The Forbidden Zone (Even Though Court Just Ruled The Other Way On The Same Issues In A Similar Case)

One does not simply walk to nashville

You can also fly, drive, or bike to the upcoming 37th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. in Nashville. Limited space still available, so don’t delay further and register now. We’re on track to record attendance, so you don’t want to miss the best nationally-focused three-day program on our area of law.

Takings, Knick, compensation, appraisals … and a bit of fun thrown in. We have many new attendees, and many new speakers, too.  Continue Reading (Nearly) Last Chance To Join Us In Nashville For ALI-CLE’s Eminent Domain Conference