Author: OwnersCounsel

OCA has asked leave to file an Amicus Brief in the case of DW Aina Lea Development vs. State of Hawaii Land Use, currently before the Hawaii Supreme Court.  The Brief, authored by OCA Member Robert Thomas, can be read in full here. The question presented before the Hawaii Supreme Court is the applicable statute of limitations for regulatory takings claims under the Hawaii Constitution’s “takings or damagings” clause. The case started out in a Hawaii state court, was removed to the U.S. District Court by the State Land Use Commission. The district court dismissed the state takings claim under the statute of limitations. Hawaii has not adopted a statute of limitations expressly for takings or inverse condemnation claims. Thus, the question is what is the closest analogue claim. If there isn’t one, Hawaii has a “catch all” statute (six years) for civil claims. When the case reached the Ninth Circuit, that court certified the state law question limitations to the Hawaii Supreme Court. Our OCA brief argues that the closest analogue to a regulatory takings or inverse condemnation case is adverse possession (which is the majority rule, nationwide). And, we also argue that the tort statute of limitations (2 years) is not applicable because a takings claim does not seek recovery for “damage or injury to . . . property.”

On Friday, July 26th from 2:00 p.m. to 2:30 p.m. ET the Land Use Committee of the ABA’s Section of State and Local Government Law is sponsoring a free (for Section members) informal webinar about the latest in takings law:Knick Picking Regulatory Takings: Did the Court Right a Wrong, or Wrong a Right? OCA presenters Dwight Merriam (featured to the left) and Robert Thomas (featured below) will discuss reaction to the decision — which has been as divided as the Court. Was this the conservative justices having their way? Is it a right versus left issue? Did that baby, stare decisis, get thrown out with the old ripeness bathwater? Will the federal courts become a forum resembling a small town zoning board of appeals, buried in trivial cases to the detriment of more important issues on the docke In this fast-paced half-hour, the presenters will ripen the ripeness problem for you, poke about the entrails of the decision to conjure up its true meaning, offer up a doyens’ debate on other pundits’ prognostications, and preview the in-depth program which will be held at the upcoming ABA Annual Meeting in San Francisco (Thursday, August 8, 2019). For more details about the webinar, read Robert Thomas’ Inverse Condemnation Blog here. Knick v. Township of Scott(June 21, 2019) overruled the 34-year-old precedent in Williamson County requiring that federal takings claimants seek compensation in state court before being allowed to proceed in federal court.  

On June 21, 2019, the U.S. Supreme Court, in a 5-4 majority opinion written by Chief Justice John Roberts “restor[ed] takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights.”Knick v. Township of Scott, 139 S. Ct. 2162 (2019). The Fifth Amendment’s “nor shall private property be taken without just compensation” is the clause Chief Justice Roberts references and is the bedrock protection afforded private property in the Bill of Rights, ensuring that full, fair, and just compensation is paid when a taking occurs. If rights guaranteed landowners in the Bill of Rights had so eroded that restorative action, and not merely interpretative, was necessary, there ought to be little dispute at the highest court. To the four justices who dissented, however, the Knick decision “smashes a hundred-plus years of legal rulings to smithereens.” Knick, 139 S. Ct. at 2183 (Kagan, J., dissenting). What could possibly have caused such a hot dispute in the fairly tepid world of eminent domain? Read on.

By OCA Members Gideon Kanner and Michael Berger IF THE DUKE OF YORK’S MEN THOUGHT they were being made to perform useless, repetitive tasks to no worthwhile end, they were in about the same condition as the American lawyers who were practicing tak- ings law in the 1970s and 1980s. During that period of time, hordes of lawyers representing the competing sides in regulatory taking cases were sent, figuratively, charging up the hill to the Supreme Court (which, to make the analogy complete, sits on top of Capitol Hill in Washington, D.C.) in an effort to do intellectual battle over the issue of remedies in regulatory taking cases. That issue was whether such takings call for constitutionally mandated “just compensation” as specified in the Fifth Amendment, or only for judicial invalidation of the constitutionally overreaching regulation. Read on.

OCA Member Robert Thomas seeks to alert all property owners in his recent posting on the impact of the U.S. Supreme Court’s recent landmark decision in Knick v. Township of Scott: Heads up, property owners: last week the U.S. Supreme Court issued a landmark ruling changing the way property rights lawsuits have been handled for the last thirty years. In Knick v. Township of Scott, the Court allowed property owners who sue to enforce their federal right to compensation because a municipal government has taken their property in violation of the U.S. Constitution’s Fifth Amendment by overregulating its use, to bring the lawsuit in federal court. You might reasonably ask: how could it be that since 1985, property owners who alleged a federalconstitutional violation were barred from suing in federal court? Well, the lawyers in our firm’s Land Use Practice Group who represent property owners in these type of cases had long asked the very same question. The details of why the Supreme Court—in the case Williamson County Regional Planning Commission v. Hamilton Bank (1985)—had barred federal takings plaintiffs from federal court are not terribly important, and it is sufficient to understand that until Knick, these kind of claims had to be raised exclusively in state court. No other federal constitutional right was subject to this requirement, only federal property rights. Williamson County assigned to state judges and state courts the exclusive responsibility for enforcing the federal constitutional right to own and use private property. In Knick, the Supreme Court revisited theWilliamson […]

Read OCA Member Robert Thomas’ take on the recent Knick decision in his blog entitled Inverse Condemnation here.

Read OCA Member Dwight Merriam’s fascinating article in the Connecticut Law Tribune on the impact of the recent Knick decision on landowner property rights here.

Congratulations to the Pacific Legal Foundation for winning a big property rights case today! In 2013, Rose Knick was forced to allow public access to a suspected gravesite on her ranch. Ms. Knick  sued over the unconstitutional property taking, but a federal court refused to hear her federal claim citing the 1985 Supreme Court decision Williamson County. Ms. Knick went all the way to the U.S. Supreme Court  seeking to overturn this precedent so property rights would be treated the same as  other constitutional rights, like due process and free speech. In a major ruling announced today, the Supreme Court has agreed that the Williamson County precedent should be overturned. This is a major victory for property owners nationwide. OCA filed an Amicus Brief in the Knick case to support Ms. Knick’s legal position.

The decision in an important takings case, Knick v. Township of Scott, Pennsylvania, reargued Jan. 16, is soon to be released. Be watching for it,… By Dwight Merriam | June 11, 2019. Read more.

Thor Hearne, a parter at Larson O’Brien and perhaps the best known lawyer specializing in Rails to Trails litigation recently filed another lawsuit in the Federal Court of Claims on behalf of 150 landowners whose property is part of an eight-mile rail corridor that will be used to expand Sarasota’s “Legacy Trail.” Despite the fact that in the last 10 years the federal government has had to pay millions to property owners to convert railroad beds into recreational trails, the Department of Justice continues to fight these cases. “It’s crazy for DOJ to contest these cases,” Hearne said. “Why do they keep fighting them?” Great question.