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Lowball Watch — The Feds

March 25th, 2014

A tip of our hat to Dwight Merriam for alerting us to a new U.S. Court of Federal Claims decision, Lost Tree Village Corp. v. United States, No. 08-117L, opinion filed March 14, 2014.

This was an inverse condemnation case arising out of the denial of a federal development permit under Section 404, and the valuation figures of both sides painted a stark picture. Following an earlier detour to the Federal Circuit on the issue of liability, once liability was found, and the case went to a valuation trial, the owner contended that the before value (with permit) was $4,285,000, and the after value (without the permit) was $25,000. The government contended for a before value of $3,910,000, and an after value of $30,000.

The court found a taking using the Penn Central three-factor approach, and awarded $4,217,887.93, with attorneys fees to be calculated later. For earlier rounds of this litigation, see 100 Fed.Cl. 412 (2011) and 707 F.3d 1286 (Fed.Cir. 2013),

You can find a link to the entire 15-page opinion in today’s post on Robert Thomas’ blog www.inversecondemnation.com

Lowball Watch — Texas

March 25th, 2014

Digitaljournal.com reports a condemnation case from Cleburne, Texas, as follows. The taking was by Peregrine Pipelineline Co. for a mile long pipeline easement, from Eagle Ford Land Partners. The offer was $80,000. The jury awarded $1.6 million, and after the court added interest, the total award came to $2.1 million. The controversy centered on the presence vel non of severance damages. PR Newswire, Texas Landowners Win $2.1 Million Judgment Against Pipeline Company Over Lower Property Value, March 24, 2014..

 

No Comment Necessary for this Headline

March 25th, 2014

Headline from today’s Los Angeles Times (3/25/14): California second least affordable state for renters, study says

http://www.latimes.com/business/money/la-fi-mo-california-rent-0140324,0,3714931.story#ixzz2wzHBiFAW

So who is first? Aloha, folks. Also the District of Columbia beats California, but technically it’s not a state.

Bubble, Buble . . .

March 24th, 2014

Latest dispatch from Southern California tells us that wealthy Chinese — that’s Chinese as in China, not your local Chinatown — are scooping up homes in the better parts of town favored by Chinese buyers. Homes in places like Arcadia, San Marino (a long-time favorite of wealthy Chinese), San Gabriel, Temple City and Walnut, are selling like hot cakes at rapidly rising prices. In parts of Arcadia prices are up 23.7% to 30.5%, and the median price is around $1.32 million. The market is apparently driven by Chinese “flight capital” — money earned in China but being spent in America, rather than remaining at risk in China’s increasingly uncertain economy. E. Scott Reckard and Andrew Khoury, Wealthy Chinese Home Buyers Boost Suburban L.A. Housing Markets, March 24, 2014 — click on http://www.latimes.com/business/la-fi-chinese-homebuyers-20140324,0,5923659.story#axzz2wtgIyIix

But whatever those buyers’ motivation, the Chinese home buying spree is having a ripple effect. This is unsurprising if you reflect on the fact that of late the Chinese have bought 12% of all U.S. homes bought by foreigners, as opposed to only 5% in 2007, the last pre-crash year. Which means that homes in desirable parts of California are becoming increasingly unaffordable to ordinary folks who, even before the Chinese buying spree, have been getting crowded out of the regular home market by well endowed cash buyers and investors. Now, add this Chinese cohort who considers these outlandish home prices to be bargains, and what you get is . . . You tell us.

This isn’t good, folks. It’s nice when your home appreciates as you age, but there is such a thing as too much of a good thing – as we should have learned in 2008.

A Puzzle for All You Inverse Condemnation Mavens

March 22nd, 2014

Who owns Grand Central Terminal?

You can give us your answer by writing to Gideon.kanner@gmail.com — Put the words “Grand Central” in the subject line. No tangible prize for getting it right, but if you do, you’ll have the satisfaction of being a real Grand Central Maven.

That Was the Year That Was

March 22nd, 2014

If you like to keep up with what’s going on in our field on an ongoing basis, especially if you want to follow California doings, we recommend the current Nossaman post by Brad Kuhn and Rick Rayl, dated March 21, 2014, entitled 2013 Eminent Domain Year in Review & 2014 Forecast – click on http://www.jdsupra.com/legalnews/2013-eminent-domain-year-in-review-201-99020/

It’s a good summary of what transpired in California courts in the past year: The good, the bad and the ugly. It’s all there.

Lowball Watch — Louisiana

March 22nd, 2014

We are informed that in an eminent domain case in Terrebone Parish, Louisiana, the Parish originally deposited $236,492.90, to which it added another $48,7899.18. The case then went to trial where after four days of trial (March 17-20, 2014), the jury awarded additional compensation, bringing the total up to $959,448.23, plus interest as well as attorneys and expert fees to be calculated later.

The case is Terrebone Parish Consolidated Government v. CMM Properties, LLC, No. 165775, 

Bubble, Bubble, . . .

March 13th, 2014

Here is a headline and subheadline from yesterday’s Los Angeles Times (Andrew Khouri, Mar. 12, 2014, at p. B1:

Some ZIPs Regain Bubble-Era Pricing.

Most are in the San Gabriel Valley or the Westside. Many other areas remain well below pre-crash highs.

Which requires no comment, except to hark back to our observation of a few days ago that said:

“Not that it wasn’t foreseen . Back in 1979, when Agins v. Tiburon was before the California Supreme Court, Justice William Clark nailed it in his dissent when he noted that an adverse consequence of the Court’s ruling that denied recovery for regulatory takings and, indeed, denied that there can be such a thing as a regulatory taking, would be regulatory extremism that in the long run would cleave California into two states: one for the affluent folks who could afford fancy digs, and another one for the hoi polloi. That was back in 1979. And so it came to pass.”

How Did 50 Successful Cases Become One Case of “A Stubborn Wyoming Family”?

March 13th, 2014

 

“Monday’s ruling [in Brandt v. United States] was a victory for a stubborn Wyoming family that was the lone holdout when the federal government tried to claim ownership of a twenty-eight-mile stretch of railroad right-of-way in southeastern Wyoming.” Emphasis added.

So says the generally respected SCOTUS Blog which in this case evidently went off the intellectual tracks because the controversy in issue (whether the feds could convert abandoned railroad rights of ways into public biking and hiking trails without paying just compensation) was no idiosyncratic theory advanced by a “lone holdout.” On the contrary, it was a rule both well settled and in this case unaffected by statutory alteration(s). So the SCOTUS Blog’s formulation of the issue is  misleading. In the past decade or so the U.S. Court of Federal Claims and the Federal Circuit have decided some fifty such cases in which they rejected the feds’ arguments, and held that upon abandonment of railroad service over these old easements, they terminated and the land underlying them became the unencumbered property of the servient owner, any ownership interest of the formerly dominant owner having ended when the railroad use was discontinued. To get a partial list of these cases, click on http://www.inversecondemnation.com/inversecondemnation/2012/02/guest-post-dojs-rails-to-trails-strategy-fails.html

The feds then tried to argue that these easements weren’t true easements, and that under them Uncle Sam (who had conveyed them to the railroads in the 19th century under the 1875 Railroad Right of Way Act) retained a reversionary interest. Unfortunately for the Feds, there was nothing in the deeds used by Uncle Sam to convey those easements to the railroads, or in the law authorizing their transfer, to support such a theory. To make matters worse, in earlier litigation Uncle Sam took a contrary position in the U.S. Supreme Court, and won, thus establishing a precedent directly contrary to the Feds’ present position. Oops!

Long story short, in the Brandt case, SCOTUS reversed a maverick 10th circuit opinion that had ruled in favor of the Feds, and held that the general rule applied here the same as in all other easement abandonment cases: when easement use is discontinued, the subject property becomes unencumbered by it, and the unencumbered land underlying it goes to the servient owner who now owns it free and clear. A classic example of that occurs when a railroad discontinues train service over a right of way and tears up its tracks. After that, if Uncle Sam wants the land underlying the discontinued easement, he has to pay for it under the “Just Compensation” Clause of the Fifth Amendment. Nothing new or startling about that — that is what has been taught in elementary first-year property courses in the first year of law school.

As Justice Holmes put it: the public is only entitled to that for which it pays. That’s what the constitutional protection of private property against government takings is all about. As the Texas Supreme Court once put it, you can’t confiscate private land just because it’s pretty. So the Brandts were not a holdout  ”stubborn  Wyoming family,” but rather good-guy Americans who stood up for their — and their fellow citizens’ — constitutional rights, and vindicated them in the highest court of the land, preserving the integrity of settled law in the process. So what they deserve is a loud “atta boy” for their principled, determined civic mindedness, not snotty derision as “lone holdouts.”

This post was edited on 3/14/14.

Postscript. For those of our readers who haven’t had the benefit — if that is what it is – of a first-year law school property course, and need some authority for what we say here, here’s the highest authority of all: Property for Dummies. And we quote:

“An easement agreement may say the easement lasts only as long as it’s used for a specific purpose, such as for a railroad. If the easement agreement specifies a purpose for the easement, the easement ends when that purpose can no longer be served, even if the easement agreement doesn’t say so.” Emphasis added.

So for that we had to go to the United States Supreme Court? Sheesh!

 

Lowball Watch — New York

March 6th, 2014

A New York trial court (what those folks call the Supreme Court) in Kings County was faced with a case of taking in which the city deposited $3,700,000, which it dropped in trial to $3,675,000. On February 28th, the trial court awarded $5,134,000, plus $425,539 in interest. PJK Realty v. N.Y. State Urban Dev. Corp., Kings County Docket No. 1688/2012. The court also awarded $464,884.87 as the owner’s attorneys fees.

The court ruled by opinion (2014 N.Y. Slip.Op. 01332) which discusses New York law governing attorneys fees in eminent domain in some detail.


The purpose of this blog is to provide a forum for people, whether eminent domain professionals or not, for exchange of ideas and a discussion of eminent domain news and issues. It does not provide legal advice. Questions concerning actual cases should be directed to the readers' own legal, appraisal and real estate advisers.

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