Takings

News & Analysis as of

Flash Boys and the Transportation Corridor Act

Michael Lewis' new book, Flash Boys concerns high frequency traders using advance notice of a stock purchase to reap extra profits. Fittingly, the North Carolina Supreme Court's decision in Beroth Oil v. NCDOT was published...more

Court Clarifies "Taking" Of Endangered Species And Highlights What's "Enough" Under CEQA

In Ctr. for Biological Diversity v. Dep’t of Fish & Wildlife, No. B245141 (Cal. Ct. App. 2d Dist. Mar. 20, 2014), the appellate court reversed the trial court’s decision, which found that the Department of Fish and Wildlife’s...more

New Hurdles for Public Agencies: Accessing Property May Now Require Eminent Domain Actions

For the first time in 38 years, a court has declared part of California’s statutory eminent domain law unconstitutional. The ruling, if upheld, will create additional hurdles for public agencies and may have unintended...more

Recent Trends In Eminent Domain -- And What To Expect Next

2013 felt a bit like deja vu, as much of the year was dominated by recurring themes: redevelopment dissolution issues, headlines on the condemnation of underwater mortgages, the U.S. Supreme Court showing interest in takings,...more

Ruling May Put The Brakes On Some CEQA Investigations

For years, public agencies have utilized a statutory "right-of-entry" procedure to gain access to private property to conduct investigations and testing before deciding whether to move forward with a condemnation action....more

Brandt Revocable Trust v. U.S. – the United States’ theory of land ownership derailed

In Brandt Revocable Trust v. U.S., the United States Supreme Court held that abandoned railway rights-of-way that had been granted to railroad companies under the General Railroad Right-of-Way Act of 1875 left underlying...more

Precondemnation "Right of Entry" Statutes Challenged as Unconstitutional Takings

For years, public agencies have utilized a statutory "right of entry" procedure to gain access to private property to conduct investigations and testing before deciding whether to move forward with a condemnation action. ...more

Court Decision Raises Questions About Viability of Precondemnation "Right of Entry" Efforts

Last week, the Court of Appeal issued a decision that may be one of the ones we look back on as among the most significant of 2014 (at least in the world of eminent domain). For years (and certainly for the entire 20 years...more

Court Rejects Statute Allowing Court Ordered Entry Onto Private Property by Public Agencies for Pre-Acquisition Testing

California Eminent Domain Law allows public agencies to obtain a court order permitting access onto private property to conduct pre-acquisition testing and inspections. These tests and inspections can help an agency...more

2013 Eminent Domain Year in Review & 2014 Forecast

It's become our custom this time of year to provide our readers with an eminent domain recap from last year along with our thoughts on what to expect in 2014. 2013 felt a bit like déjà vu, as much of the year was dominated...more

The Uniform Relocation Act Does Not Provide a Private Right of Action to Property Owners

On March 7th, a U.S. District Court sided with the Federal Aviation Administration (FAA) on whether the Uniform Relocation Act (URA) provides private property owners with a private right of action: it does not. The Pacific...more

Pre-Condemnation Entry Statutes Found Unconstitutional

Direct Condemnation Action Needed to Conduct Statutory Pre-Condemnation Studies - For the first time in 38 years, a court has declared part of California’s statutory eminent domain law unconstitutional. On March 13,...more

SCOTUS: Federal Government Retains No Interest in Abandoned Railroad Rights-of-Way

Congress grants a railroad a right-of-way across public land. The federal government then grants the land to a private landowner, who takes the parcel subject to the railroad right-of-way. The railroad later...more

Supreme Court Ruling Represents Major Shift for Railroad Rights of Way

This week, the Supreme Court ruled that the United States Forest Service could not construct a trail on an abandoned railroad right of way (ROW) that crosses through private property. Brandt v. United States, No. 12-1173,...more

Legal Alert: Marvin M. Brandt Revocable Trust v. United States: Supreme Court Opens the Door to Potential Fifth Amendment Takings...

In what is commonly known as a rails-to-trails case, the U.S. Supreme Court held on March 10, 2014, in an eight-to-one decision, that certain railroad rights-of-way revert to private property owners following the railroad’s...more

New California Court of Appeal Opinion Holds That Supreme Court's Seminal Nollan and Dolan Opinions do Not Apply Where a Permit...

The well-known "nexus" and "rough proportionality" tests from the United States Supreme Court's opinions in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994) do not...more

Part II: Is a Public Hearing Mandatory Pursuant to the Eminent Domain Procedure Law?

Our first installment in this series on condemnation procedures detailed a key element of the process found in the New York Eminent Domain Procedure Law (“EDPL”) – the public hearing. While the condemnation process generally...more

Requirement That Landowners Give Aircraft Overflight Easement Before Obtaining Building Permit Did Not Constitute a Taking of...

Landowners assert a requirement that they provide an aircraft overflight easement before obtaining a building permit constitutes a taking of their property without just compensation. The court of appeal held that the...more

Government Need Not Satisfy Nexus and Proportionality Tests if Dedication Requirement Does Not Otherwise Constitute a Taking

Landowners routinely have to give up something in return for a government agency’s granting a discretionary permit. However, there are limits, as the government agency cannot typically demand conditions that are not...more

Real Estate Tip – Part 2: Planning Board Demands: When Are They Unconstitutional?

Koontz v. St. John’s River Water Management District 133 S.Ct. 2586 (2013) - In our last real estate tip, we saw how the U.S. Supreme Court under the Nollan and Dolan cases test conditions of approval under the 5th...more

Requiring Landowners To Dedicate An "Overflight" Easement Is Not A Taking, Even When All An Owner Seeks Is A Minor Building Permit

The United States Supreme Court decisions in Nollan and Dolan provide landowners with a useful tool for seeking compensation when government agencies use their land use authority to exact valuable property rights and other...more

On Remand from the U.S. Supreme Court, Federal Circuit Affirms Ruling that Temporary Flooding Resulted in Compensable Taking

As you may recall, last December we reported on the U.S. Supreme Court's decision in Arkansas Game and Fish Commission v. United States, in which the Supreme Court held that government-induced flooding of limited duration may...more

The Keystone Pipeline's Legacy in Texas Condemnation Law

Construction of the 485-mile-long southern portion of the TransCanada Keystone Pipeline system (known as the Gulf Coast Project) is scheduled to be completed and operational by the end of 2013, but it leaves a legacy of...more

Surface Owner’s Regulatory Taking Claim Denied

In Walton v. City of Midland, the surface owner of a 35 acre tract within the city limits of Midland, Texas, contended that a provision in a city permit for an oil or gas well was a regulatory taking because it required the...more

Bank of New York Mellon Corp. Sues to Block City of Richmond’s Condemnation of Home Loans

The Bank of New York Mellon Corporation (BNY) is seeking an injunction to prevent the City of Richmond, California from using eminent domain powers to seize and refinance more than 600 home loans with outstanding balances...more

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