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Fla App: Inverse Condemnation Triggers "Sword-Wielder" Venue Exception

Posted: 24 Jan 2012 12:01 AM PST

Here's a short one for you civil procedure mavens: in Pinellas County v. Baldwin, No. 2d11-2274 (Jan. 20, 2012), the District Court of Appeal (Second District) concluded that a property owner could bring an inverse condemnation action against the County of Pinellas in a court in the County of HIllsborough.

Under Florida procedure, when suing the government, the action must, generally speaking, be brought in the government's home court. Thus, when suing a county, the proper venue for the lawsuit is in the trial courts of that county. But there are exceptions to that rule.

Here, Pinellas County owned a borrow pit physically located in Hillsborough County. Baldwin alleged that her land was permanently flooded and thus taken when the borrow pit overflowed as a result of construction. She instituted her inverse condemnation lawsuit against Pinellas County in the courts of Hillsborough County, and Pinellas moved to dismiss by asserting its "home venue privilege." The trial court denied the motion and the County appealed.

The Court of Appeal concluded that an exception to the home venue rule with the ominous label "sword-wielder" applied, because the official act complained of was performed outside of the county's home turf, and:

whether the state is the initial sword-wielder in the matter, and whether the plaintiff's action is in the nature of a shield against the state's thrust. If so, then the suit may be maintained in the county wherein the blow has been or is imminently about to be laid on.

Slip op. at 5 (quoting Dep't of Revenue v. First Federal Savings & Loan Ass'n of Fort Meyers, 256 So.2d 524, 526 (Fla. Dist. Ct. App. 1971)). Here, the County maintained its borrow pit in another jurisdiction and "[t]he unusual nature of Ms. Baldwin's claim for inverse condemnation is its extraterritorial aspect." Slip op. at 6. The court rejected the County's argument that it was not exercising government powers outside of its home venue, because it didn't matter in the end: the fact that the County was alleged to have taken the property without compensation was the act alleged to have triggered liability, and this qualified as the County's initial "thrust." The court thus suggested that the inverse condemnation claim was merely a shield.

We're not sure about the intricacies of Florida procedure, but this seems like this case could have been resolved in much the same manner on the basis that the County could hardly be heard to complain about venue when the res alleged to have been taken is in another county and the action that was alleged to have caused the taking was the County's borrow pit. But whatever the rationale, the result seems about right to us.

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9th Cir: No Vested Rights Taken By Oregon's Measure 49

Posted: 23 Jan 2012 03:56 PM PST

We've been watching Bowers v. Whitman, No. 10-24966 (Jan. 12, 2012), the case which challenged Oregon's Measure 49, the statute adopted by initiative that replaced and modified the earlier Measure 37. Measure 37, for those not aware, was the initiative measure by which Oregon voters required the state to compensate owners whose private property was devalued by land use regulations. It essentially required the state to either allow development or pay, even if the regulation did not run afoul of the high thresholds of regulatory takings doctrine.  

Back to Measure 49. That statute, as the Oregon Supreme Court held, "conveys a clear intent to extinguish and replace the benefits and procedures that Measure 37 granted to landowners." Corey v. Dep't of Land Conservation & Dev., 184 P.3d 1109, 1113 (Or. 2008). But what of those landowners in process under Measure 37 when the voters adopted the new law? Measure 49 "exempted a property owner from pursuing compensation pursuant to the new provisions in Measure 49 if the property owner had "a common law vested right . . . to complete and continue the use described in the waiver.' . . . Measure 49 does not mandate any particular process for establishing vested rights. Claimants seeking a vested rights determination generally either applied for a local decision or sued for a declaratory judgment." Bowers, slip op. at 245.

Property owners who had started the Measure 37 process but had not recovered compensation and were thus halted in their tracks, sued in federal court asserting a taking of their right under Measure 37 to compensation and other vested rights:

First, Bowers Plaintiffs alleged that there had been a "taking" of protected property in violation of the Fifth Amendment due process clause. Bowers Plaintiffs asserted that those property interests were "statutory rights to monetary compensation," "vested and accrued claim[s] for compensation," "legal entitlements . . . in lieu" of monetary compensation, or "Measure 37 waivers and the entitlement to monetary compensation." Second, Bowers Plaintiffs alleged that Measure 49 violates equal protection guarantees under the Fourteenth Amendment. Third, Bowers Plaintiffs alleged that Measure 49 violates substantive due process under the 14th Amendment.

Slip op. at 247. The Ninth Circuit rejected each of these arguments, and the bulk of the opinion is devoted to analysis of whether the plaintiffs possess rights that have "vested" and are thus protected "property" under the Takings Clause. Id. at 249 ("Thus, the critical issue is whether Plaintiffs’ Measure 37 property interests have vested such that Oregon could not remove or modifythe right without committing a constitutional taking.").

The court professed confusion as to what interest they asserted was the property right that had vested, id. at 250 ("we emphasize that Plaintiffs failed to articulate any clear characterization of the exact property interest to which they are entitled"), and rejected three possibilities: (1) "accrued causes of action" under Measure 37 were not vested property rights because they had not been reduced to final judgment, id. at 251; (2) the right to statutory compensation under Measure 37 was not vested because it was not an "express and unequivocal promise" to pay compensation, id. at 252-53; and (3) Measure 37 did not give the plaintiffs any rights to a particular land use. Id. at 253-54,

On the final claim the court analogized the Measure 37 rights to land use permits, and concluded those claims were not ripe under Williamson County.

More here from lawprof Jonathan Zasloff at Legal Planet blog. Thanks to colleague Dwight Merriam for the heads up on this decision.

Bowers v Whitman, No. 10-35966 (Jan. 12, 2012)  

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