Real Estate & Property Law

Friday Round-Up

By Robert Thomas (inversecondemnation.com)

Here's what piquing our interest today:

• Not! - It looks like our grandiose prediction that "Feds Likely To Seek Cert In Casitas (Water Rights Taking Case)" turned out to be wrong since nothing is showing on the SCOTUS docket and the deadline was last Friday. Maybe the SG decided, after some deliberation, that it was better to give this one a pass. In Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008), the Federal Circuit held that contractual water rights were taken when the federal government required the landowner to construct a fish ladder and divert water in order to protect endangered steelhead trout. The court held that the requirement resulted in a physical diversion of water for public use. The Federal Circuit's opinion is posted here, and the court's denial of rehearing and rehearing en banc -- which generated concurring and dissenting opinions, see 556 F.3d 1329 (Fed. Cir. 2009) -- is available here.

• 9/11 Case Could Bring Broad Shift on Civil Suits - The NY Times weighs in on Iqbal, the "most consequential decision of the Supreme Court's last term." That's the one where the Court held that instead of vague "notice pleading," a complaint must state a "plausible claim for relief," which is measured not by the allegations in the complaint, but the district court's "judicial experience and common sense." This case is of particular interest to property owners challenging pretextual public use in federal court.

• Judge: Brescia obeying order with construction - The Kauai newspaper reports the latest on the high-profile development brawl on the Garden Island. This one involves a beachfront lot and burial issues.

• The Limits of Backlash: Assessing the Political Response to Kelo - a 2009 law review article detailing the legislative responses to Kelo ("The Kelo backlash probably resulted in more new state legislation than any other Supreme Court decision in history.").  Lengthy, but worth a read.

• Palmer/Sixth Street Properties, L.P. v. City of Los Angeles, No. B206102 (Cal. Ct. App. July 22, 2009) - a decision from California's Second Appellate Division about affordable housing. State law specific, and deals with technical issues of whether a  municipal ordinance is preempted by state law, but an interesting read even for those who do not practice in the Golden State.

Full post as published by inversecondemnation on July 24, 2009 (boomark / email).