Property Law Developments—Joseph William Singer

Groundwater ownership in Texas

Posted on February 26th, 2012 by Joseph William Singer.
Categories: Environmental law, Takings, Water rights.

The Texas Supreme Court has issued a somewhat confusing opinion holding that landowners own the groundwater beneath the surface of their land. In Edwards Aquifer Auth. v. Day, No. 08-0964 (Feb.24, 2012), the Texas Supreme Court held that a water regulation commission may have taken an owner’s groundwater rights without just compensation under the Penn Central test when it limited an owner’s groundwater rights to the amounts of water he had historically taken from the land. The court found a state law that defined the amount of groundwater one can withdraw based on historical uses to be a potential taking of property because it believed an owner should not lose the right to withdraw vested rights in groundwater just because the landowner had failed to exercise his right to withdraw it in the past. The court did not overturn the state’s free use or absolute ownership rule for groundwater that allows owners to withdraw water without liability to neighboring owners whose wells are dried up or whose water amounts are reduced. It did hold that the landowner “owns” the groundwater beneath the surface and that use of several factors, including but not limited to historical uses, might constitute a legitimate regulatory measure. The court remanded for a determination of whether the state statutes, as applied to this owner, constituted a taking of property under the multi-factor Penn Central test. The case leaves groundwater regulation in Texas in a state of great uncertainty since the allowable parameters of regulation of groundwater are now in doubt. The Court cautioned that it did not believe its ruling would be disruptive and the legislature remained empowered to enforce environmental laws regulating water withdrawal without violating the takings clause. At the same time, it suggested that environmental regulation of water might require compensation of owners whose rights to withdraw water are restricted.

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Oral agreement to buy property does not create a compensable property interest when the property is condemned

Posted on November 21st, 2011 by Joseph William Singer.
Categories: Real estate transactions, Statute of frauds, Takings.

The Nebraska Supreme Court ruled that a potential buyer who had an oral contract to buy real estate did not have a right to just compensation when the property was condemned by public authorities. American Central City, Inc. v. Joint Antelope Valley Auth., 2011 WL 2420787 (Neb. 2011). Although oral agreements to buy property are enforceable despite the statute of frauds in cases of part performance, the Nebraska Supreme Court ruled that the potential buyer’s sole remedy was against the seller of the property rather than the public authorities that took the property by eminent domain.

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No taking of property without just compensation when property of an innocent owner is damaged from a lawful police search

Posted on February 11th, 2011 by Joseph William Singer.
Categories: Takings.

In conformity with the rule prevailing in most states, a New Jersey trial court held that an innocent owner whose property was damaged as a result of a lawful police search has no right to compensation under the takings clause. Simmons v. Loose, 2011 N.J. Super. LEXIS 16 (2011).

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Vested right to mine protected despite change in local zoning law

Posted on January 26th, 2011 by Joseph William Singer.
Categories: Takings, Zoning.

The New York Court of Appeals affirmed the usual rule that an owner may have a “vested right” to engage in activity on land if the owner invests substantially in reliance on existing law even if the use has not commenced before the zoning law is changed to prohibit the previously lawful use. In this case, Glacial Aggregates LLC v. Town of Yorkshire, 924 N.E. 2d 127 (N.Y. 2010), the owner had invested $500,000 in mitigation measures to secure a mining permit and had received the permit; when the town amended its zoning law to classify mining as a use needing a special permit and then refused to issue the permit, the Court of Appeals had little trouble in finding the $500,000 investment, when coupled with the permit grant, to be sufficient to give the owner a vested right to engage in the mining activity. The case is interesting because no mining had yet occurred and all expenditures were undertaken to get the permit itself; in the usual case, a vested right is not found until the owner begins investing in creating the use–for example by beginning to build a structure. Here the initial expenditures were both necessary and expected and of such a magnitude that the new prohibitory law could not be imposed retroactively.

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No compensation when city takes private sewer system

Posted on January 26th, 2011 by Joseph William Singer.
Categories: Takings.

A court in Massachusetts has held that no compensation is due when a city takes a private sewer system. North Adams Apartments, L.P. v. City of North Adams, 2011 Mass. App. LEXIS 41 (App. Ct. 2011). The court held that the transfer of title from the private owner to the city caused the owner no pecuniary loss; indeed, it benefited the owner by transferring maintenance obligations from the owner to the city. The court also noted that developers frequently created sewer hook-ups and then voluntarily (and without compensation) sought to transfer title to the municipality. Although one might think that loss of control of the sewer connections would constitute a property loss, the court’s factual finding was that there was no reduction in fair market value of the property and no economic value to the land owner in retaining ownership of the sewer connections.

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Private road act authorizing an easement by necessity across neighboring land deemed a taking of property and a violation of the public use requirement

Posted on January 14th, 2011 by Joseph William Singer.
Categories: Servitudes, Takings.

The Pennsylvania Supreme Court ruled, in In re Opening Private Road ex rel. O’Reilly, 5 A.3d 246 (Pa. 2010), that a statute authorizing an owner to construct a road across neighboring property to get to a public road effected an unconstitutional taking of property. Read minority opinion. The court distinguished the common law doctrine of easement by necessity that grants owners rights of way by necessity over remaining land of a common grantor, finding that doctrine to be constitutional. The court further ruled that such a taking was for a private purpose unless the predominant beneficiary of the taking would be the public.

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Florida beach renewal program not a taking; Supreme Court fails to resolve judicial takings issue

Posted on July 5th, 2010 by Joseph William Singer.
Categories: Takings.

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S.Ct. 483, 175 L.Ed.2d 305, 2009 U.S. LEXIS 7593, 2010 WL 2400086 (June 17, 2010), the Supreme Court held that the Florida Supreme Court did not effect an unconstitutional taking of property when it held that a state-funded beach renewal project did not take property rights in violation of the state constitution’s takings clause. The state had funded beach renewal projects to deposit new sand on eroded beaches; once that occurred, the statute set a fixed boundary between public rights in the restored lands and private property rights in the upland; that fixed line was placed where the mean-high tide line had been prior to the restoration project.

The Court unanimously held (8-0, with Justice Stevens not participating) that the Florida statutory program as interpreted by the Florida Supreme Court did not constitute a taking of of any property rights of littoral (beach-front) owners. Prior Florida case law affirmed the power of the state to fill in the seabed that it owned; it also provided for no change in the boundary between private property rights of littoral owners and public rights in the seabed when littoral land increased suddenly because of a natural event (called avulsion). Florida common law did allow the boundary to change if the mean high-water line shifted gradually by accretion (slow addition to littoral land by deposit of new natural material) or reliction (slow addition to littoral  land by natural receding of the water).

The Supreme Court held that the Florida beach replenishment program was merely an enactment of these principles. There was no precedent for the proposition that avulsion does not change the boundary line merely because the state was responsible for the avulsion through a publicly-administered beach restoration project. Nor did the statute take away littoral owners’ rights to accretion since any slow accretions to land created by avulsion would belong to the state as owner of the avulsive land.

Four Justices (Alito, Roberts, Scalia, Thomas) would have held that state courts can effect takings of property through interpretation of state common law or statutes while four Justices (Breyer, Ginsburg, Kennedy, and Sotomayor) found it unnecessary to reach that issue because under any version of a test that might be adopted, no such taking occurred in this case. Justice Scalia responded, in the plurality opinion, that one could not find that no taking occurred without identifying some test for what constitutes a judicial taking. Justice Kennedy wrote a separate opinion, joined by Justice Sotomayor, arguing that any judicial deprivations of property rights should be handled by the due process clause rather than the takings clause.

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New York courts grapple with public use issue

Posted on December 4th, 2009 by Joseph William Singer.
Categories: Takings.

In a split 3-2 decision, Kaur v. N. Y. State Urb. Dev. Corp., 2009 WL 4348472, (N.Y. App. Div. Dec. 3, 2009), an appellate court in New York found a defective process of determining that a neighborhood was blighted and thus the taking was for the private purpose of helping Columbia University rather than the public purpose of redeveloping a blighted neighborhood. read article.

This occurred only a couple of weeks after New York’s high court, the Court of Appeals, held in Goldstein v. N.Y. State Urb. Dev. Corp., 2009 WL 4030939 (N.Y. Nov. 24, 2009), strongly reaffirmed (in a 6-1 decision) that property can be taken for economic development purposes under the state constitution to remove urban blight and that courts should generally defer to legislative determinations of when blight exists. read article

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Ninth Circuit holds rent control law to constitute an unconstitutional taking of property

Posted on October 19th, 2009 by Joseph William Singer.
Categories: Takings.

The Ninth Circuit ruled in Guggenheim v. Goleta that a rent control law covering mobile homes violated the takings clause because it transferred 90% of the market value of the tenancy from the landlord to the tenants. The court distinguish Yee v. City of Escondido, 503 U.S. 519 (1992) on the ground that Yee held that such a law did not effectuate a “physical taking” but left open the question of whether the law constituted a regulatory taking under the Penn Central ad hoc test.

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Palazzolo remand

Posted on September 26th, 2009 by Joseph William Singer.
Categories: Takings.

On remand, the Rhode Island trial court found that development of Palazzolo’s salt marsh land south of a shallow, tidal pond would constitute a public nuisance because it would inhibit the “valuable filtering system regarding water runoff containing pollutants and nitrogen from adjacent land.”  Palazzolo v. State, 2005 WL 1645974, at*3 (R.I. Super. Ct. 2005). The court also found that half of theproperty was below the mean high water line, making it tidal land subject to the public trust doctrine which defines such lands as owned by the public and not subject to private development at all. Finally,the court found that, although one upland site could be developed,almost none lower lots could ever have been profitably developed because of the extraordinary engineering costs involved in draining thesite and preparing the site to support structures. Thus, there was notaking of property.

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No taking to prevent construction on a floodplain

Posted on September 26th, 2009 by Joseph William Singer.
Categories: Takings.

The Supreme Judicial Court of the Commonwealth of Massachusetts held that it was not a taking to prevent an owner from building a house on a floodplain when construction would exacerbate flooding to neighboring property. Gove v. Zoning Bd. of Appeals of Chatham, 831 N.E.2d 865 (Mass. 2005).

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Legislative Responses to Kelo

Posted on September 26th, 2009 by Joseph William Singer.
Categories: Takings.

In response to the Kelo decision, almost all states have passed legislation or constitutional amendments that limit the power of municipalities to take property for economic development purposes. Elisabeth Sperow, The Kelo Legacy: Political Accountability, Not Legislation, Is the Cure, 38 McGeorge L. Rev. 405, 418-422 (2007). The legislation limiting eminent domain powers falls into several categories; some states passed laws in just one of these categories and others passed more than one type of limitation. First, some states repudiated Kelo by prohibiting the use of eminent domain to take property from one person to transfer it to another person if the taking is for economic development purposes, such as increased tax revenue or additional jobs. See, e.g., Alaska Stat. §§09.55.240(d), 29.35.030; 735 Ill. Comp. Stat. 30/5-5-5(c); Me. Rev. Stat. tit. 1, § 816; N.H. Rev. Stat. § 162-K:2(IX-a)(b); Vt. Stat. tit. 12, § 1040(a). Second, some states adopted Justice Thomas’s literal approach by prohibiting all takings of property from one private owner for transfer to another unless the property is open for public “use,” meaning public ownership or access. See Fla. Stat. § 73.013; Iowa Code §§6A.21 to 6A.22; N.H. Rev. Stat. § 162-K:2(IX-a)(a); Tenn. Code § 29-17-102(2). Third, many states passed laws prohibiting takings unless the property being taken is “blighted,” raising health or safety concerns. Ala. Code §§ 24-2-2, 24-3-2; Cal. Health & Safety §33030; Iowa Code §§6A.22; Mo. Rev. Stat. § 523.271; Wis. Stat. § 32.03(6). See Centene Plaza Redevelopment Corp. v. Mint Properties, 225 S.W.d3 431 (Mo. 2007) (finding insufficient evidence of blight to justify the taking). Fourth, some states regulate takings by procedural measures designed to increase public participation in the process through more hearings or better public notice or through requirements that the taking authority present evidence sufficient to justify the taking. See 735 Ill. Comp. Stat. 30/5-5-5(d); W. Va. Code § 16-18-6. Fifth, some states require higher compensation than the usual “fair market value” if a person’s home is taken. Ind. Code § 32-24-4.5-8(2)(A)(owner of a residence entitled to 150% of fair market value; owner of a business entitled to “any loss incurred in a trade or business that is attributable to the exercise of eminent domain”).

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Constitutional Limitations on Takings in Oregon & Arizona

Posted on September 26th, 2009 by Joseph William Singer.
Categories: Takings.

On Nov. 2, 2004, the voters adopted a state law known as Measure 37 that required compensation when any regulation “restricts the use of real property” and is enacted after an owner or a family member acquires title to land if the regulation “has the effect of reducing the fair market value of property” unless the regulation restricts activities “commonly and historically recognized as public nuisances under common law” or protects “public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations.” Or. Stat. §195:305; Michael C. Blumm & Erik Grafe, Enacting Libertarian Property: Oregon’s Measure 37 and Its Implications, 85 Denv. U. L. Rev. 279 (2007). The measure applied both to statutes and to zoning ordinances. See Or. Stat. §195.305 to 195.314. Because the law applies to any regulations passed after an owner (or a family member) acquired title, present owners may go back to the laws in effect at the time their family first acquired the land – for some families, this may go back to a time before any zoning or environmental laws were in effect. This “inheritance right” would mean that zoning in a particular area would be inconsistent if acquired by different families at different times, making each parcel might be subject to different land use regulations. For this reason – and because it turned out that deregulating neighboring property might lead to a strip mall next to one’s house and even have the effect of reducing the value of one’s home – Measure 37 proved unpopular in various respects and was substantially modified when the Oregon voters passed Measure 49 on Nov. 6, 2007. Measure 49 eliminated the “inheritance right” and restricted Measure 37 claims to laws that restricted restrict residential, farm or forest uses of property, while allowing, without compensation, laws that limit commercial or industrial uses like strip malls and mines. Measure 49 also limited the number of homes that may be built on property freed from regulation by Measure 37. Claimants may build up to three homes if home construction was allowed when they acquired their properties, whether or not the post-acquisition restriction on construction reduced the value of their land; they may build four to ten homes if a post-acquisition regulation reduced their property value; however, they may not build more than three homes on high-value farmlands, forestlands and groundwater-restricted lands. And Measure 49 capped at twenty the number of homes sites any owner may build through Measure 37 waivers of land use laws regardless of the number of property she owns. In 2006, Arizona passed an act similar to Measure 37, known as Proposition 207 or the Private Property Rights Protection Act. Ariz. Stat. §12-1134.

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Public use case settled

Posted on September 16th, 2009 by Joseph William Singer.
Categories: Takings.

Consent order issued in the Long Branch case

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