April 1, 2013

Arkansas Fish and Game – Remand Briefs

Posted by Joseph Grather under Court Decisions, In the news | Tags: , , , , , |
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As you know from our December 2012 blog, the United States Supreme Court found that an Army Corps flooding program, which damaged a hardwood forest managed by the Arkansas Game & Fish Commission, may constitute a taking of private property.  Therefore, the Court upheld the property owner’s inverse condemnation claim, reversed the Fifth Court’s decision and remanded the matter to the Federal Court of Claims to adjudicate constitutional “just compensation.”

The parties have now submitted their briefs on remand.  Our Owners’ Counsel colleague, Robert H. Thomas, Esq. has them available on his blog. Click here for the property owner’s brief, and here for the government’s brief.   The government argues that it “did not take a flowage easement” and “at most, there was a modest, unforeseeable, and incremental increase in flooding.” (Db1).  The property owner argues that the Corp’s induced flooding resulted in “catastrophic mortality” of several different tree species. (Pb8).

We’ll keep you posted.

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December 4, 2012

US Supreme Court: Temporary Flooding May Constitute a “Taking”

Posted by Joseph Grather under Court Decisions | Tags: , , , , , , |
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Photo courtesy:  www.agfc.com

Today, the United States Supreme Court issued its unanimous decision in the case of Arkansas Game and Fish Commission v. United States (No.11-597).  The Court concluded in a ruling favorable to the property owner “that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability.” (Slip op. at 2).

Plaintiff, Arkansas Game and Fish Commission owns 23,000 acres of land in northeast Arkansas along the banks of the Black River.  The property is “forested with multiple hardwood timber species that support a variety of wildlife habitats.”  Defendant, United States, owns the Clearwater Dam located about 115 miles upstream of the property.  The dam is operated by the Army Corps of Engineers.  The Corps’ water release policy is set forth in a Water Control Manual adopted contemporaneous with the construction of the dam in 1948.

In 1993, the Corps approved a deviation from the water release policy.  The property owner objected because the “revised water-release plan adversely impacted the property by inducing annual flooding.”  Nonetheless, the Corps implemented the deviation over the ensuing six years.  In 2005, the property owner sued, claiming that the resultant flooding of its downstream property resulted in a taking of private property without payment of constitutional just compensation as mandated by the Fifth Amendment.

The case was tried in the Federal Court of Claims.  The Court of Claims found that the flooding was foreseeable, and that the property was severely impacted.  The property owner “had been deprived of the customary use of the [property] as a forest and wildlife preserve, as the bottomland hardwood forest turned, over time, into a headwater swamp.”  The Fifth Circuit reversed ruling that the taking had to be permanent in nature to be compensable.

The Supreme Court reversed and remanded.  The Court’s holding was straight-forward and plain:  ”We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.”  Part of the Court’s decision was based on the long-standing rationale that the “Takings Clause is designed to bar Government from forcing some people to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

The Court summarized its own review of takings clause jurisprudence by noting that “we have rejected the argument that government action must be permanent to qualify as a taking.”   Therefore, “because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration may be compensable.” (Slip op. at 9).

The impact of this decision is yet unknown but has already been the subject of much media coverage in a matter of hours.  More on this decision is available  from our Owners’ Counsel colleague, Robert Thomas, in his Inverse Condemnation blog post today.

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October 17, 2012

No “Temporary Taking” of Private Property in Long Branch

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On October 11, 2012, the Appellate Division issued an opinion affirming dismissal of a property owner’s temporary taking claim. Hoagland v. City of Long Branch (A-0358-11T2; A-1583-11T2).  Absent successful petition for certification, so ends another chapter in Long Branch’s long history of redevelopment.

Before getting to the opinion, it must be noted that the only private property along New Jersey’s beautiful Atlantic coast-line that did not appreciate over the past six decades were those areas clouded by government redevelopment efforts.   Those efforts by the way, allowed private redevelopers to grab at least half of Asbury Park’s shoreline during the real estate boom of the early to mid 2000′s, the City’s redevelopers ran out of money when the market dried-up.  So, what happened to the owners whose property was blighted and clouded by condemnation more than a decade?  They got their property “back.”  No harm no foul?  I guess in New Jersey its, ‘no blood, no foul.’

The redevelopers were allowed to abandon these takings in 2008, and the property owners could either walk away with their expenses paid, or file new temporary takings claims.  The Hoagland case explains why the latter alternative was the road that should not have been taken.

The property owners argued that the filing of a complaint lis pendens effected a taking of their property.  The trial court disagreed, as did the appellate court. (Slip op. at 7).  In most simple terms, since the City never filed a “Declaration of Taking” and paid the property owners’ expenses after it abandoned the takings, the property owners were not entitled to relief.

In order to prove a taking of private property, one must show that some action by an entity with the power of eminent domain substantially destroyed the beneficial use of the property.  The property owners contended that “their properties lost value and they were unable to sell or develop their properties until the condemnation actions were abandoned.   As the trial court found however, there is no factual support for these claims in the record.” (Slip op. at 13).

A sampling of the redevelopment history is seen from our prior blogs:

Greetings from Asbury Park

Asbury Park Heads to Arbitration

Asbury Park Settlement Rejected

Asbury Park Asks Judge to Cancel Redevelopment K

Asbury Park Redeveloper’s Claim Against City Revived (2009)

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May 22, 2012

Inverse Condemnation Defeated: Wildwood Property Owner Fails to Exhaust Administrative Remedies

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On Friday May 18, 2012, a New Jersey appellate court affirmed – and published – the trial court’s decision in Dock Street Seafood, Inc. v. City of Wildwood, ___ N.J. Super. ___ (Law Div. Docket No. L-17056-06).  Plaintiff/appellant owns a vacant parcel of property located at 600 West Baker Ave in Wildwood, N.J. adjacent to its seafood business property on West Montgomery Avenue.  The Baker Ave property was designated “in need of redevelopment” in 2002.  A redevelopment plan was adopted shortly thereafter, and a redeveloper was named – K. Hovnanian.

The property owner never challenged the in need of redevelopment designation.

At some point thereafter,  K. Hovnanian made an offer to purchase the Baker Avenue property for $660,000.  The offer was rejected.  K. Hovnanian backed out of the deal when the market turned in 2007.

The property owner was interested in developing the property itself, but never submitted an application because City officials consistently stated that they would not permit private development within the redevelopment area.  Therefore, in 2006, the property owner filed a lawsuit alleging that the City’s actions resulted in a “taking” of private property without payment of just compensation, i.e. filed an “inverse condemnation” suit.

A Law Division judge tried the case and dismissed the property owner’s takings claim.  The trial judge reasoned that the property owner failed to exhaust administrative remedies by not filing an application for development before filing the lawsuit.  The property owner argued that such efforts would have been futile given municipal officials’ insistent statements that they would not permit private development within the redevelopment area.

The Appellate Division affirmed based upon the opinion below.

While we have yet to learn whether the owner will be submitting its own development plan to “exhaust” its administrative remedies, this opinion appears to have been made based upon the trial court’s factual determination as to whether the administrative remedy of approvals was really available or, whether (as suggested by the owner) those efforts would have been futile.  Not much in the way of new law, which makes it somewhat surprising that the case was approved for publication, but nonetheless, score one for the municipality in this case.

 

March 12, 2012

New Jersey Farmer Growing More Dedicated in Fight Against Eminent Domain

Posted by Cory K. Kestner under In the news | Tags: , , , , , , , |
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Today’s Daily Record featured this article by reporter Cara Townsend which highlighted Todd Kuehm, a fourth generation New Jersey farmer, and his fight against the Township of Montville’s use of eminent domain on his 28 acre farm.

Photo Courtesy of Cara Townsend/The Daily Record

The article covers the history of the litigation from the Township adopting ordinances which denied him the ability to install a well despite having permits from the New Jersey Department of Environmental Protection, the entry and dismissal of several injunctions to deny him access to the well, to a recent finding by a New Jersey Superior Court judge that the Township had exceeded its authority and interfered with Mr. Kuehm’s property rights.  The Township later filed an appeal with the New Jersey Appellate Division to challenge the court ruling.

Mr. Kuehm’s story was also recently the subject of Fox News Channel’s “It’s Your Land” series.   The video, featuring McKirdy and Riskin’s Anthony F. Della Pelle, may be viewed here.  Shortly after the TV segment, the Montville Patch also published its own story.

The matter is currently pending on appeal.

For more blog posts on property owners challenging a government’s use of eminent domain, please see the following:

Eminent Domain Abuse Sign is Protected Speech

Jury Awards Double NJ Transit’s Offer for Property Taken by Eminent Domain

Mt Holly Gardens Residents Live to Fight Another Day

Lotta Lettuce J.T.S. Farms, LLC is represented by McKirdy & Riskin, PA as the family’s condemnation counsel.

 

October 26, 2011

Prior Owner’s Assent Does Not Defeat Inverse Condemnation Claim

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Ciaglia v West Long Branch – Inverse Remedy Awarded by Appellate Division

Yesterday, the Appellate Division of New Jersey’s Superior Court reversed a trial court that had dismissed a property owner’s lawsuit alleging that West Long Branch’s zoning regulations amounted to an inverse condemnation of an undersized lot created by a subdivision approved by the Planning Board in 1957.  A full text of the decision may be found here.

While the land use, procedural, and ownership history of the lot was very complicated, the appellate court sifted through the municipality’s procedural objections arising from the long history, and found that a regulatory taking had occurred because the Zoning Board of Adjustment’s recent denial of the property owner’s request for a hardship variance meant that the lot had been zoned into inutility.  This decision was made on appeal, even though the trial court had earlier ruled that a prior owner’s assent to a subdivision in the 1950s creating the undersized lot meant that the hardship was “self-created”.  The appellate court focused upon the impact of the local zoning, not events which had occurred more than 50 years earlier.

The Court therefore remanded for entry of judgment requiring the municipality to commence condemnation proceedings to value the land taken by government regulation.

 

September 7, 2011

Long Branch Property Owners Suffer Setback

Posted by Joseph Grather under Court Decisions | Tags: , , , , , , , , |
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As reported today in the Asbury Park Press, four property owners in Long Branch’s infamous MTOTSA (Marine Terrace, Ocean Terrace, and Seaview Avenue)  redevelopment area lost their most recent battle with the governing body.

Two years ago, after the Appellate Division reversed a trial court decision that authorized the use of eminent domain to acquire private property within the MTOTSA neighborhood, all but 4 of the property owners settled their cases against the town.  The deal allowed them to remain in their homes and the town would reimburse attorneys’ fees and costs.

The four property owners who refused to sign the deal wanted money damages from the town for an alleged “temporary taking” in addition to keeping their homes and getting reimbursed attorney fees.  The gist of the claim was that during the period after the trial court authorized the taking in 2005 until the Appellate Division reversed in 2009, there was a temporary taking for which monetary compensation was required to be paid.

The property owners argued that when Long Branch filed its complaint and the trial court authorized the taking, there was a “constitutional taking” requiring payment of compensation regardless of the fact that the government never took title or physically invaded the properties.

The trial court disagreed, finding that there was no temporary taking because the property owners failed to prove that all or substantially all of the economically beneficial use of the subject properties was taken by some government action.  The property owners continued to live in their homes during the alleged temporary taking period, a fact normally fatal to an inverse condemnation claim.

The property owners have vowed an appeal, and we will keep you posted.

A couple of our prior reports on redevelopment in Long Branch may be found here:

Rehabilitation for Long Branch

Another Blow to Long Branch Redevelopment

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August 26, 2011

Highlands Act Withstands Another Round of Legal Attacks

Posted by Anthony F. Della Pelle under Court Decisions, Legislative Developments | Tags: , , , , , , , |
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 New Jersey appellate courts, in a series of published and unpublished opinions, recently addressed a variety of issues raised by the adoption of the Highlands Regional Master Plan (RMP) as required by the Highlands Water Protection and Planning Act (the Highlands Act), N.J.S.A. 13:20-1 to -35.  The Council, on July 17, 2008, adopted the RMP for the Highlands Region, which became effective on September 5, 2008, upon its acceptance by the Governor.  Generally, the opinions affirmed the validity of the Highlands RMP, held that the Highlands Act Transfer Development Rights Program did not have to conform with the State Transfer of Development Rights Act (State TDR Act), N.J.S.A. 40:55D-137 to -163, and explained the applicability of the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329.19, and COAH obligations, with the mandate to preserve land established in the Highlands Act following Governor Corzine’s adoption of Executive Order 114 in September 2008.

 Stated simply, the RMP acts an overlay that is only enforceable when a municipality adopts the RMP’s standards into its own land use ordinances.  A municipality is not required to conform its master plan to the RMP with respect to the parts of the municipality in the planning area, but may elect to do so voluntarily per N.J.S.A. 13:20-14(f) and N.J.S.A. 13:20-15(a).  Thus, a property is not subject to a constraint on development as a result of its designation in the RMP unless the municipality has imposed some restriction upon the property through its zoning ordinance, and not as a direct result of the Council’s adoption of the RMP, and any challenge must first be raised against the validity of the municipality’s zoning ordinance.

 TDR programs allow the transfer of development rights from environmentally sensitive areas to more readily-developable areas.  These TDR programs permit “a public agency to use market forces to encourage the transfer of development potential from areas the agency wants to preserve (sending zones) to areas that are more appropriate for growth (receiving zones).”  OFP, L.L.C. v. State, 395 N.J. Super. 571, 588-89 (App. Div. 2007), aff’d o.b., 197 N.J. 418 (2008).  Landowners in sending zones can obtain compensation for lost development potential from purchasers who buy TDR credits in the form of TDR credits for restricting development on their properties. Purchasers are then entitled to build in a receiving zone at a greater density than permitted by the underlying zoning.

 The Appellate Division’s opinion in In re Highlands Master Plan, __ N.J. Super. __ (App. Div. August 15, 2011), may be found here.

 The Appellate Division’s opinion in In re Highlands Master Plan, Executive Order 114, __ N.J. Super. __ (App. Div. August 15, 2011), may be found here.

 The Appellate Division’s opinion in Bocina Homes Corp. v. Jon Corzine, A-1046-08 (App. Div. August 15, 2011), may be found here.

 The Appellate Division’s opinion in Toll Brothers, Inc, v. Jon Corzine, A-0923-08 (App. Div. August 15, 2011), may be found here.

 The Appellate Division’s opinion in In re Adoption of Module 3 Housing Element and Fair Share Plan Instructions by the Executive Director of the Highlands Council, A-6430-08 (App. Div. August 15, 2011), may be found here.

For more discussion on the Highlands Act, please see the following blog posts:

 United States Supreme Court Declines to Hear New Jersey Highlands Act Case

 New Jersey Assembly Passes Bill Creating Receiving Zones for Development Rights Under Highlands Act

 Highlands Act Upheld

 NJ Supreme Court upholds Highlands Act

The author wishes to acknowledge the assistance of Cory K. Kestner, Esq., of McKirdy & Riskin, PA, in the preparation of this article.

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August 25, 2011

Constitution “Alive and Well” in Virginia

Posted by Joseph Grather under Court Decisions, In the news | Tags: , , , , , |
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The Virginia DOT will be forced to pay for what it took from farmer Ed Jennings.  In a rare “inverse condemnation” (where a property owner sues government to compensate for a taking), the judge found that run-off from a bridge over the property owner’s land, and mounds of construction debris deposited on the land were “takings” by government that warranted payment of just compensation by the DOT.  The Roanoke Times article reporting on the case may be read here.

Ed Jennings has farmed his family’s 300 acre property – purchased by his grandfather in 1935 – for his entire life.  During that time, Jennings has witnessed ten governmental takings of his land for various “public uses”: highways, bridges, and power lines.  This time, however, he was the plaintiff, complaining about takings that resulted from prior governmental action.

Reflecting on the recent win, Jennings commented:

“Despite what people say, the constitution is alive and well in Wythe County.”

Congratulations to Mr. Jennings and to his attorney, our colleague Joe Waldo from the firm of Waldo & Lyle in Norfolk. 

Of note, in New Jersey, if a property owner prevails in an inverse condemnation suit, the government is required to reimburse the property owner for attorneys’ fees and other experts’ fees and costs expended in proving the taking.

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August 11, 2011

Electricity Shocks Property Owners, But Not The Court

Posted by Joseph Grather under Court Decisions | Tags: , , , , , , , |
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Shock Treatment Insufficient to Constitute Inverse Condemnation

Yesterday, a New Jersey appellate court affirmed a jury verdict awarding $195,000 in “nuisance” damages to a Brick Township couple, but refused to reverse the trial court’s finding that an electric utility company’s stray “neutral to earth” voltage running rampant through their backyard was insufficient to amount to taking. Smith v. Jersey Central Power & Light Company (A-2801-08).  Mr. Smith received his first shock treatment back in 2002 when he attempted to get into his hot tub.  The problem persisted to the point where the couple removed their swimming pool, hot tub, and children’s swing set and abandoned use the back-yard altogether for a period of time.

The jury awarded $145,000 for property damage, and $50,000 for interference with the use of the property. Prejudgment interest and a portion of taxed costs were added to the jury verdict.  Immediately after trial, the property owners installed a new swimming pool. JCP&L moved to set aside the verdict on that fact alone. That motion was denied.

The property owners appealed the dismissal of the takings claim, and the denial of taxed costs, suggesting that the circumstances constituted an inverse condemnation.  JCP&L cross-appealed on the denial of its motion to set aside the verdict and raised several trial errors.  The appellate court affirmed on all counts, specifically rejecting the property owners’ claim that a taking occurred.

The full text of the opinion may be found here.

 

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