California Eminent Domain Report : a blog following condemnation, inverse condemnation, and regulatory takings written by attorneys with Nossaman LLP.

Here's a quick update about some recent headlines in our eminent domain community.

• Eminent Domain for New School in Foster City?  According to a Mercury News article, Charter Square owners resistant to selling property to school district, the San Mateo-Foster City School District is looking for a site for a new school, and it may turn to eminent domain to acquire the Charter Square Shopping Center.  Moving forward with the new school depends on the passage of a $130 million bond measure in June.  If it goes forward, more than a dozen businesses will need to be relocated.
• Orinda to Condemn for Storm Drain Project:  According to an article in the Lamorinda Weekly, Orinda City Council Initiates Eminent Domain Proceedings to Keep Glorietta Project on Track, the City of Orinda is moving forward with the condemnation of easements over two properties in order to construct the Glorietta Storm Drain Improvement Project.  Several other properties were required, but one particular property owner declined any compensation for the easement (that's a new one), instead suggesting that the City use the savings towards repaving some of its roads.  One of the other owners, however, simply wants additional time to complete an independent appraisal and obtain a report from an arborist to understand the project's impacts to some of the owner's trees (including a 75-foot redwood tree -- that could get expensive).
• Redding Also Needs Sewer Easement:  According to an article in the Record Searchlight, Redding OK's eminent domain to get land; sewer easement needed for subdivision plan, the City of Redding has also approved using eminent domain to acquire sewer easements to benefit a developer's proposed subdivision plan.  It was a hotly contested Board decision that lasted about two-and-a-half hours.  About 13,000 square feet of property is needed, and an offer was made in the amount of $5,700.  The property owner claimed the offer was "pennies on the dollar."  Eminent domain can be a private developer's best friend or its worst enemy.
• Federal Takings Claims Do Exist!  Check out our colleague Robert Thomas' blog post, There, That Wasn't So Hard, Was It? Third Circuit Actually Lets Landowner Raise Federal Constitutional Claims In Federal Court, where he explains that finally a federal court has allowed a takings claim to proceed without knocking it out on procedural grounds.  A rarity, indeed.
• Kelo Apology:  According to an article on NewsBusters, Well-Kept Secret: New London, Conn. Mayor Has Apologized for Kelo Property Seizures, the newly elected Mayor of New London, Connecticut, has apologized to the property owners impacted by the condemnation involved in the infamous Kelo v. City of New London decision.  The Mayor confirmed he issued a "formal apology," and is quoted as saying, "I think our development strategy was flawed. We are moving forward with new strategy that will embrace a new vision." 

Stay tuned for next week's updates.

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Last week, we sent out a blog post with a number of quick updates on right-of-way-related issues making headlines across California.  Rick thought it would be a cool idea if we made this type of post a weekly habit, so here it goes (and, if it doesn't work or happen every week, obviously blame Rick):

• City of Visalia Can't Negotiate With Property Owner:  Here's an interesting story.  According to an article in the Visalia-Delta Times, "Visalia moves to take land near St. Johns," the City of Visalia is using eminent domain to acquire property necessary for a walking trail.  So what makes the story interesting?  The property is apparently owned by a governmental agency -- the Tulare County Levee District One -- whose managing agency has been inactive since 2005.  As a result, the City has no one to negotiate with to acquire the property, and therefore intends to serve the condemnation complaint by publication and thereafter acquire the property by default judgment.
• ALI-ABA Conference This Weekend:  For those of you who are eminent domain practitioners, just a reminder that the ALI-ABA Annual Eminent Domain Conference will be taking place this Thursday through Saturday in San Diego.  I know my colleague Rick Rayl will be attending, and our friend Robert Thomas from Hawaii will also be presenting.  Check out his blog, www.inversecondemnation.com, for more details on the conference.
• Updated Appraisal Institute Book for Appraising Convenience Stores:  For our appraiser friends, just a quick note that the Appraisal Institute has finalized its second edition of the treatise, “Convenience Stores and Retail Fuel Properties: Essential Appraisal Issues.”  There's a significant focus on gas station properties, so if you have or anticipate assignments involving these issues, be sure to grab yourself a copy from the Appraisal Institute. 

If you like this type of weekly, short-story update, let us know.  We'll continue to provide more substantive posts on important topics, but if this type of update seems to go over well, stay tuned for similar weekly updates.

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 Here's a few updates on eminent domain-related issues taking place in California this week:

• City of Covina Condemnation:  According to an article in the San Gabriel Valley Tribune, Covina using eminent domain to take property from Alhassen-controlled company, the City of Covina has filed an eminent domain action to acquire a vacant, half-acre property owned by West Covina-based developer Ziad Alhassen.  The City intends to utilize the property for parking for police department employees and County firefighters.  The condemnation action was necessary after the City and the owner apparently had a "huge gap" in their appraised values for the property.  
• Pasadena Sees Impact of Elimination of Redevelopment:  Curbed Los Angeles is reporting in its article, Post-Eminent Domain Seizure, Pas Doesn't Have the Cash to Fix Up Old Julia Morgan YWCA Building, that after the City of Pasadena filed an eminent domain action to acquire the old Julia Morgan YWCA Building (see our previous post), the City is now in a quandry in deciding what to do with the property once the action is resolved.  With the elimination of redevelopment in California, the City won't have the money it needs to restore the building.
• Lake County Moves Forward with Sewer Project:  The Lake County Record-Bee is reporting in its article, Sewer pipeline project approved, that the Lake County Sanitation District has adopted a resolution of necessity to acquire property necessary for a wastewater sewer pipeline project in Clearlake.  The condemnations will involve partial acquisitions, and the construction contractor has been directed to work with property owners to minimize impacts.  
• Battle For Brooklyn Screening:  For those of you up in Nor. Cal. who haven't had a chance to catch the screening of "Battle For Brooklyn," here's your chance:  it's playing tonight at the Roxie Theater.  Check out our good friend Robert Thomas' blog, inversecondemnation.com, for details on the movie time and where to grab tickets.  Robert will actually be there to answer any questions you may have.  

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Today, the California Supreme Court issued its much-anticipated opinion in California Redevelopment Assn. v. Matosantos, the case challenging ABX1 26 and ABX1 27.  In a decision foreshadowed by the tone of last month's oral argument, the Court upheld ABX1 26, but struck down ABX1 27 as a violation of California's Proposition 22:

• "Assembly Bill 1X 26, the dissolution measure, is a proper exercise of the legislative power vested in the Legislature by the state Constitution."
• "A different conclusion is required with respect to Assembly Bill 1X 27, the measure conditioning further redevelopment agency operations on additional payments by an agency‘s community sponsors to state funds benefiting schools and special districts. Proposition 22 ... expressly forbids the Legislature from requiring such payments."

This means that the law eliminating California's redevelopment agencies stands, while the law that would have provided a mechanism to reinstate redevelopment agencies upon making certain "voluntary" payments was struck down.  The bottom line:  the decision ends redevelopment in California.

We will have more on the opinion in the very near future.  In addition, we will be hosting a free webinar on Wednesday, January 4, 2012, at 2:00 p.m. to discuss the opinion, its implications, and what happens from here.  We hope you'll join us, you can register here. 

UPDATE, 2:05 p.m.  While we digest the opinion and attempt to write something meaningful about it, Robert Thomas has already managed two substantive blog posts on the case today, including a short summary of the opinion and a good collection of early reports on the decision. 

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Yesterday, we wrote about the Avenida San Juan Partnership v. City of San Clemente decision.  For more information on the decision, see the following:

• Our E-Alert, Court of Appeal Upholds Regulatory Takings Decision Under Penn Central Test;
• Man Bites Dog! California Property Owner Wins Regulatory Taking Case in the California Court of Appeal, a blog post by Gideon Kanner on Gideon's Trumpet;
• Either Reverse Your Unconstitutional Spot Zoning, Or Pay. Your Choice, by Robert Thomas on his inversecondemnation.com blog; and
• Eminent Domain: Winning Owner In Inverse Condemnation Battle Cannot Recoup Fees By Attorney Owner Or Reap A Fee Multiplier Request, a piece in California Attorney's Fees focused, not surpisingly, on the attorneys' fees portion of the opinion.

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Want the scoop on what future challenges local government agencies face with respect to eminent domain and redevelopment?  Want to hear from some of the most well-recognized eminent domain attorneys across the nation?  Want to get some CLE credit?  Want to get all your questions answered?  Want to do it all from your desk, in a short one-and-a-half hour presentation?

Come join us on Thursday, December 1, at 10 a.m. (PST) for the online seminar, "Eminent Domain: Redevelopment Challenges for Local Government, Navigating Federal Funding Requirements, Challenges for Public Utilities in Right-of-Way Projects, and Objections to Taking for Public Use."  The panel is nothing short of outstanding:

• Rick Rayl and I will be giving an update on redevelopment, and in particular the potential nationwide ramifications of California's currently pending redevelopment lawsuit before the California Supreme Court. 
• Robert Thomas and Mark Murakami, our good friends at Damon Key (Hawaii), and authors of the blog inversecondemnation.com, will focus on strategies for handling and raising objections to a taking.
• Anthony Della Pelle from McKirdy & Riskin (New Jersey), and author of the blog New Jersey Condemnation Law, will focus on issues with planning for public utility takings and right of way projects.
• J. Casey Pipes from Helmsing, Leach, Herlong, Newman & Rose (Alabama), is the Owners' Counsel member firm from Alabama and Co-Chair of the ABA Litigation Section's Condemnation, Land Use, and Zoning Law Committee, and he will be covering how to navigate the waters of complying with federal funding requirements.

For more details and registration, please check out the Strafford website.  We're hoping you'll sign up.  There's a Q&A session at the end, so bring your questions.

And, as a final note, much thanks to Robert Thomas for getting the ball rolling on this webinar.  It's pretty exciting to be working with some of the top eminent domain attorneys across the country.

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We've covered in the past regulatory takings claims and the benchmark three-prong Penn Central test for analyzing potential liability.  We've also noted the issues involved in consistently applying those factors, and the resulting unpredictibility in evaluating the merits of potential regulatory takings claims.  

William Wade, Ph.D., a resource economist with the firm Energy and Water Economics, often writes about these issues, offering clearly articulated potential solutions to dealing with these Penn Central issues.  And Mr. Wade has done it again, as his recent article, Sources of Regulatory Takings Economic Confusion Subsequent to Penn Central appearing in the Environmental Law Reporter, is another fine piece of work.  Among other insights, Mr. Wade explains that

Courts have confused ad hoc considerations of case facts with economic valuation methods, which are not ad hoc."

We recommend checking out our colleague Robert Thomas' blog post about Mr. Wade's article at inversecondemnation.com.  And, as a shameless plug, take note of Mr. Wade's "Author's Note," paying thanks to yours truly for help with the article.  It was a truly enjoyable -- and honorable -- experience working with one of the foremost economic experts in the field of regulatory takings.

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Six years ago, the US Supreme Court issued its landmark decision in Kelo v. City of New London, affirming the government's ability to exercise eminent domain for purely economic purposes.  The public backlash and media firestorm surrounding the decision turned our quirky group of eminent domain attorneys into rock stars for a short moment in time.  Ms. Kelo's battle was put to print in Jeff Benedict's Little Pink House:  A True Story of Defiance and Courage, and it now appears the infamous case is making its way to your television. 

According to a Hartford Courant article, Little Pink House is being made into a Lifetime TV movie starring Brooke Shields as Ms. Kelo.  While Ms. Kelo's former residence is now a "90-acre swath of nothingness," Benedict recognizes the bigger picture, noting that "there has been a movement triggered across the country to turn back these eminent domain laws because of [the Kelo] decision."

So, perhaps again for a glimpse of time, the day-to-day workings of us eminent domain attorneys can make their way into the spotlight.  Between the Little Pink House, the Battle for Brooklyn, Greetings from Asbury Park, and Split Ends, eminent domain fights appear to be movies in the making.

To learn more, I'd also recommend checking out the reports from our blogging colleagues, Robert Thomas at inversecondemnation.com, and Anthony Della Pelle at newjerseycondemnationlaw.com. 

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It's not often a film comes out dealing with eminent domain issues.  You may remember when Avatar came out, my partner Rick Rayl and our esteemed colleague Gideon Kanner had a nice back-and-forth spar about whether the film had anything to do with eminent domain.  (Rick ended up buying Professor Kanner a movie ticket in the hopes of changing his mind.)  

Well, there can be no dispute about the eminent domain context in the recent documentary "Battle for Brooklyn," which follows a man's fight to save his Atlantic Yards neighborhood from condemnation for the New Jersey Nets' new basketball arena.  And the documentary is making its west coast swing, opening here in Los Angeles this weekend.

If you're in the right of way industry, this is a must see.  Or, if you simply like tales of David versus Goliath, go get yourself a movie ticket.  If you're not sold, take a look at the Los Angeles Times' movie review.  Better yet, give Indiewire's review a read.  (How's this for a statement:  "Atlantic Yards using eminent domain is the sort of precedent that could change how development happens in this country, wherever you live.")  Time it right, and you may partake in the question and answer session with the film makers and the man who led the battle cry.

Do public agencies make low-ball offers?  Are areas that are designated as "blighted" really so?  Is eminent domain for redevelopment "Un-American"?  Is there any point to fighting City Hall?  No matter how you feel, this movie may evoke some strong emotions.  If you can't make it to see the documentary, but want to know more, I'd suggest checking out Robert Thomas' inversecondemnation.com blog post covering the case in detail.  

Enjoy your weekend!

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As originally reported by Robert Thomas at inversecondemnation.com, a petition for certiorari was filed asking the U.S. Supreme Court to address "[w]hat category of takings are subject to heightened judicial scrutiny, and when is the risk of undetected favoritism so acute that an exercise of eminent domain can be presumed invalid?"  While Justice Kennedy brought this issue to the national stage when he raised the possibility of such conduct in a recent concurrence, as of today, and likely tomorrow, the question remains unanswered. 

In Kelo v. City of New London, 545 U.S. 469 (2005), while the U.S. Supreme Court rejected the notion that the promotion of economic development must be treated as per se invalid, or even presumptively invalid, the Court reiterated that a public agency will not "be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit."  Justice Kennedy elaborated on this concept in his concurrence, stating that "[t]here may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause." 

Justice Kennedy, however, did not provide any specific guidance as to when such a presumption is appropriate, concluding that since the taking by City of New London "occurred in the context of a comprehensive development plan meant to address a serious city wide depression, and the projected economic benefits of the project cannot be characterized as de minimis," it was not the proper "occasion for conjecture as to what sort of cases might justify a more demanding standard."

The current petition seeks to have the Court fill that gap, using the Hawaii Supreme Court's decision in County of Hawaii v. C&J Coupe Family Ltd. P'ship, 242 P.3d 1136 (Haw. 2010), as the springboard.  Generally, the case goes like this:

• In exchange for a change of zoning necessary to construct a 1500-plus unit gated development, the developer agreed to construct a bypass highway.
• Shortly thereafter, the County of Hawaii and the developer executed a development agreement providing that the County would use its power of eminent domain to acquire any property along the proposed route for the bypass highway if the developer was otherwise unable to purchase the property.
• Except for the property owned by C&J Coupe Family Limited Partnership (Coupe), the developer was able to obtain all of the property along the route.
• Pursuant to the terms of the development agreement, the County of Hawaii adopted a resolution of necessity and filed an eminent domain action to condemn the Coupe property.  The development agreement was expressly referenced in the resolution of necessity.
• During the pendency of the first condemnation action, the County of Hawaii adopted a second resolution of necessity and filed a second eminent domain action to condemn essentially the same Coupe property.  This time, the resolution of necessity did not make any reference to the development agreement.  
• The court held that the first condemnation was invalid, because the County had unlawfully delegated its sovereign power of condemnation to the developer by way of the development agreement.  The court, however, eventually upheld the second condemnation action, concluding that Coupe had failed to demonstrate by clear and palpable evidence that the public use asserted was a pretext.  In reaching this holding, the court declined to adopt a presumption of invalidity or saddle the County with the burden of proving the validity of its stated public use.  

While the case presents compelling facts, particularly in light of Justice Kennedy's concurrence, the chance of U.S. Supreme Court review remains slim. 

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When a business subject to a franchise agreement is condemned, questions often arise as to the allocation of proceeds between the franchisor and franchisee.  When the question involves payment for lost business goodwill, the courts have placed strict limits on the franchisor's ability to recover. 

In particular, courts have long held that a franchisor cannot make a claim for lost business goodwill because the franchisor fails one of the key entitlement prongs:  the franchisor does not operate a business on the property.  (See Redevelopment Agency v. International House of Pancakes, Inc. (1992) 9 Cal.App.4th 1343.) 

In an opinion issued this week, Galardi Group Franchise & Leasing, LLC v. City of El Cajon (June 7, 2011, Case No. D056737), the court focused on two purported twists to the longstanding IHOP rule:

1. The Weinershnitzel franchisor structured the franchise agreement to make it appear that the franchisor had an ownership interest in the business, going so far as (a) to include a condemnation provision with a blanket waiver by the franchisee of any right to recover for business goodwill, and (b) to limit the franchisee to a month-to-month rental of the property, while the franchisor retained ownership of everything, down to the fixtures and equipment.
2. After the condemnation commenced and the restaurant was closed, the franchisee expressly assigned its right to recover lost business goodwill to the franchisor.

The court was not swayed by the franchisor's creative structuring, applying the IHOP rule to bar the franchisor from making a business goodwill claim in its own right.  Despite the lengths the franchisor went to, it still failed to meet the test of operating a business on the property.

With respect to the assignment, the trial court rejected that claim as well, concluding that the franchisee's waiver of its right to recover lost goodwill in the franchise agreement meant that the franchisee had no claim left to assign once the inverse condemnation action took place.

The Court of Appeal disagreed, concluding that the parties' intent to assign the goodwill claim to the franchisor appeared both in the franchise agreement and in the specific assignment once the inverse condemnation action was commenced.  The Galardi court found no reason the franchisee could not assign its goodwill claim, and it held that the franchisor could pursue the claim, standing in the franchisee's shoes. 

We'll have more to say about this opinion and the impact it may have on future cases, but for now, we just wanted to get a quick summary out there.  In the meantime, if you must know more about the case immediately, take a look at Robert Thomas' blog post, Who "Owns" the Weinershnitzel?

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I read a really interesting blog post by Robert Thomas, 10th Cir: Landowner Not "Prevailing Party" Even Though They "Won $3.8 Million -- Much More Than The Government Ever Offered Them".  It describes a recent 10th Circuit decision that denied the property owner an attorneys' fees award where (1) the property was valued at trial at $3.8 million and (2) the government's offer was a mere $186,500.  What caught my attention was the mechanism by which the federal courts award fees under the Equal Access to Justice Act (EAJA), as compared to the fee-shifting rules in California. 

Under the EAJA, the owner is declared the "prevailing party" entitled to a fee award only where the final result is closer to the highest valuation opinion the owner presented at trial than it is to the highest valuation opinion the government presented at trial.  Thus, where the owner originally argued for a value of more than $30 million, the $3.8 million final award was far closer to the government's $186,500 number, meaning the owner received no fee award.  Simple math. 

How would this case have played out in California?  The result in California is a bit tricky to predict.  The value to which the owner's appraiser opined at trial has no bearing on whether the owner can recover fees.  Rather, fee awards in California depend on a comparison of the government's "final offer of compensation" against the owner's "final demand for compensation," exchanged shortly before trial. 

Using those figures, California courts must determine whether, in light of the adjudicated value, the government's final offer was unreasonable, while the owner's final demand was reasonable.  If the government was unreasonable and the owner was reasonable, the owner is entitled to fees.  Otherwise, no fee shifting occurs.  In making this determination, courts look at three factors:

1. The amount of difference between the demand/offer and the compensation awarded;
2. The percentage of difference between the demand/offer and the award; and
3. The good faith, care and accuracy with which the demand/offer was calculated.

Looking at the facts of the 10th Circuit case, if the owner's final demand had been $30 million or more, it's pretty clear that a California court would not have awarded fees.  Indeed, the court likely would have viewed both the government's offer and the owner's demand as unreasonable.

In the actual case, the owner requested that the court adopt a $6.1 million valuation figure (a value established by an independent panel of appraisers appointed by the court to render an opinion of value).  If we view that as representing a hypothetical "final demand," does the result change? 

Hard to say.  Assuming we treat the $186,500 as the government's final offer, the final value of $3.8 million would lie somewhere in the middle:  $3.2 million above the government's offer and $2.3 million below the owner's demand.  On the numbers, I think it would be easy to conclude that the government's "offer" qualified as unreasonable; the value awarded was more than 20 times the "offer" amount. 

But would a demand $2.3 million above the adjudicated value qualify as "reasonable"?  To me, this is a close call, and the outcome would likely depend on the court's overall view of the parties' conduct.  The "demand" was pretty far off, both in terms of percentages and in terms of raw numbers.  The demand missed by more than $2 million and the was more than 50% higher than the final value. 

Most reported opinions on this subject focus on the government's reasonableness.  And while no bright line mathematical rule exists, in most cases, offers of less than 60% of the award are deemed unreasonable, offers of more than 85% of the award are deemed reasonable, and offers falling within 60-85% can go either way.   (A 1995 opinion, People v. Yuki, first established these guidelines.)

Applying this same construct to the demand, this might mean that for a $6.1 million demand, final awards of less than $3.7 million (60% of the demand) mean the demand qualifies as unreasonable, awards of more than $5.2 million (85% of the demand) mean the demand qualifies as reasonable, while awards between $3.7 and $5.2 would depend on other factors.  (Disclaimer:  I'm not aware of any reported opinion that actually applies the 60% / 85% thresholds in this manner to evaluate final demands.)

Were this the rule, the $6.1 million demand would fall, just barely, in the gray area in light of the $3.8 million award.  And were this what actually happened, my gut says that the court would probably find that the demand qualified as reasonable in light of how woefully inadequate the government's offer was.  But I could easily see a court ruling either way on this one.

So which approach is better?  I have to admit I'm intrigued by the federal approach, which prevents either side from presenting an exaggerated number at trial.  This would presumably make the fact-finder's role easier and would make it less likely that a wildly high - or low - result would occur.  But in the end, I think California has it right.  The goal is to prompt settlements, and using the settlement figures as the measuring sticks for determining fee awards makes the most sense, at least to me.   

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We've been following the Guggenheim case for more than a year now, and in the last week or so, there have been a number of developments.  As a quick recap, this decision by the Ninth Circuit Court of Appeals held that the City of Goleta's rent control ordinance - which had the effect of transferring the vast majority of a mobile home park's value from the park owner to the tenants - did not constitute a taking.  The decision followed an earlier decision by a different panel of the same court, in which the court held that the ordinance did qualify as a taking. 

Not surprisingly, the owner then sought review by the U.S. Supreme Court.  The Cert Petition is now pending, and the stack of amicus briefs on the case has been growing rapidly.  I could take the time to summarize them, but fortunately for me, someone else has already done it.  Here are some links to Robert Thomas'  inversecondemnation.com blog from the last week:

• Takings Claims Run With The Land, a post summarizing a brief by the National Association of Home Builders in support of the Guggenheims' Petition;
   
• No "Expiration Date" On The Takings Clause, a post summarizing a brief filed by the Cato Institute in in support of the Guggenheims' Petition;
   
• Ninth Circuit "Did Violence" To Penn Central Test, a post summarizing the brief Mr. Thomas filed and another brief filed by Equity Lifestyle Partners, both in support of the Petition;
   
• Ninth Circuit Applied All Penn Central Factors, a post summarizing the brief filed by the City in opposition to the Guggenheims' Petition.  
   

Aside from these posts, the blog contains a detailed resource page about the Guggenheim case, with links (at least as of the date of this post) to nine amicus briefs in support of the Guggenheims and three amicus briefs in support of the City. 

Nice work, Robert (and thanks for saving me the trouble of trying to keep track of all of this myself).

We'll let you know when the Supreme Court makes its decision. 

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For those who didn't get enough of littoral property rights, accretion, and avulsion in reading about this summer's Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, there is a new case making its way through the system. 

In Maunalua Bay Beach Ohana 28 v. State of Hawaii, the court analyzed a 2003 Hawaii law that had the effect of transferring ownership of property created by accretion to the state.   In a split decision, the Hawaii Court of Appeal held in 2009 that with respect to property that existed at the time the law went into effect, any transfer of ownership constituted a taking. 

However, with respect to any new property created through accretion after the law's enactment, the Court held that no taking would occur, because "any claims that Plaintiff may have to future accretions are purely speculative, and other courts have held that a riparian owner has no vested right to future accretions."

In June, the Hawaii Supreme Court declined to review the case, and the plaintiffs have now filed a Petition for Writ of Certiorari before the U.S. Supreme Court.   Whether the Supreme Court accepts the case remains to be seen, but as fellow eminent domain blogger Robert Thomas of Hawaii aptly notes, the case does have the potential to fill in some gaps left by the Florida beach case:

• Are future interests property, or can state legislatures confiscate them because they have not "vested?"
• If a state appellate court finds a statute constitutional only by changing long-standing state common law and makes a formerly private right public, is that a "judicial taking?"
• Are there some common law property interests that are so fundamental that a state court cannot alter them?

For more background on this interesting case, take a look at Mr. Thomas' September 8 post, Cert Petition In Hawaii Beach Takings Case: Is The Right To Accretion A "Property" Interest?

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