Takings

City can demolish blighted structure it believes is financially unreasonable to repair

The Michigan Supreme Court overturned a lower court ruling that had held it to be unconstitutional for a city to demolish a structure that the city believes is financially unreasonable to repair even if the owner claims to want to make the repairs. The court held that it does not constitute a deprivation of due process of law to require the demolition given the fact that the owner allowed the property to become dilapidated and the city could rationally believe that demolition was the best remedy to remove the public nuisance....

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No easement by necessity when parcel is landlocked because of eminent domain

When a taking of property by eminent domain to build a highway bifurcated a parcel, one part became landlocked but obtained access to a public road by permission over neighboring property. When that permission ended many years later and the parcel became landlocked the owner sought an easement by necessity over the neighbor's land but the court found the traditional requirements for such an easement to be lacking. Since the parcel had not become landlocked when severed from the neighboring land there was no basis for imposing an obligation on that neighbor to create an easement for access...

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State did not dispossess owners and thus did not "take' lands in violation of the constitution merely by asserting ownership

The Texas Supreme Court affirmed its ruling that the border between state-owned submerged lands and private lands along the coast is the "mean higher high tide line" or the mean location of the high tide line over the regular tidal cycle of 18.6 years. Porretto v. Tex. Gen. Land Office, 2014 WL 2994436 (Tex. 2014). In various ways, agents of the state of Texas has acted so as to claim public rights in property that is on the "private" or landward side of the line. The Texas General Land Office...

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State seizure of unused traveler's checks survives substantive due process challenge

Kentucky had a law declaring unused traveler's checks to be abandoned property if they are not used after a period of fifteen years; such property escheated to the state. When the legislature reduced the period from fifteen to seven, the change was challenged as a violation of due process of law. The Sixth Circuit held that the legislation was consistent with the due process clause on the ground that substantive due process requires only that the legislation be rationally related to a legitimate government interest. In this case, the legislation shortening the period from fifteen years to...

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Supreme Court taking cases from last Term

In Arkansas Game & Fish Comm'n v. United States, 133 S.Ct. 511 (2012), the Supreme Court unanimously overruled the Federal Circuit decision in Arkansas Game & Fish Comm'n v. United States, 637 F.3d 1366 (Fed. Cir. 2011), that had held that deviations by the Army Corps of Engineers from a flood management plan that resulted in temporary flooding of riverfront property did not constitute a taking of property...

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Right of entry held to be compensable under the takings clause

The Texas Supreme Court held that a transfer of land to a city with an option to repurchase if the property were ever used for non-park purposes constituted a fee simple subject to condition subsequent and that the right of entry was a property right for purposes of the takings clause and compensable when then city failed to honor the condition. El Dorado Land Co., L.P. v. City of McKinney, 395 S.W.3d 798 (Tex. 2013). The deed provided that the conveyance was "subject to the requirement and restriction...

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New Jersey Supreme Court rules benefits of dunes in protecting homes must be counted against the losses from a partial taking in determining just compensation for a partial taking

The Supreme Court of New Jersey has ruled that benefits to the property from a partial taking must be counted against the losses in determining just compensation. Borough of Harvey Cedars v. Karan, — A.3d —, 2013 WL 3368225 (N.J. 2013). In this case, the borough government took part of the beachfront owner's property to construct dunes to protect the property from erosion or loss during storms. The court held that just compensation for the partial taking "must be based on a consideration of...

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Low flying planes may effect an unconstitutional taking of property

The Wisconsin Supreme Court ruled that frequent, low-flying aircraft may so interfere with the use and enjoyment of property as to constitute an unconstitutional taking of property by the state. Brenner v. New Richmond Regional Airport Comm'n, 816 N.W.2d 291 (Wis. 2012). Owners located near an airport sued the airport authority when it extended a runway in a manner that created low overflights of their property. The court held that a taking could occur if the flights were "low...

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Homeowners' Association dues lost because the property was taken by eminent domain are held not to be compensable under the takings clause

When a government took 14 units from a homeowners association by eminent domain, the remaining owners lost the dues and assessments that those owners would have contributed to the homeowners association. However, the Fifth Circuit has ruled that those lost assessments represent mere "contractual rights" that are not compensable under the takings clause as lost property rights even though they ran with the land. United States v. 0.073 Acres of Land, — F.3d —, 2013 WL 322242 (5th Cir. 2013). The...

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Supreme Court takes certiorari in two takings cases

Arkansas Game & Fish Comm'n v. United States, 637 F.3d 1366 (Fed. Cir. 2011), held that deviations by the Army Corps of Engineers from a flood management plan that resulted in temporary flooding of riverfront property did not constitute a taking of property without just compensation but might constitute a tort for which compensation could be sought. The flood management plan exists because the riverfront property is subject to flooding in the first place and it is intended to alleviate that. The doctrinal...

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