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Deviation by Army Corps from operating plan, resulting in a temporary or ad hoc flowage easement, does not constitute a taking

Taking cases have been reviewed in prior posts. To state that the law is convoluted, complex, and obscure is to state the obvious. In Arksansas Game & Fish Commission v. U.S., 2011 U.S. App. LEXIS 6417 (Federal Circuit: 3/30/11), the U.S. appealed a judgment of the U.S. Court of Federal Claims...

First Circuit sets forth clear indices when a regulatory takings claim is ripe

As noted in prior posts, there has been a long history by landowners seeking to use the Fifth Amendment to obtain compensation for so-called "regulatory takings" of their property. In Downing/Salt Pond Partners, L.P. v. Rhode Island , 2011 U.S. App. LEXIS 10358 (First Circuit: 5/23/11), the...

Real Cases in Real Estate By Andrea Lee Negroni, Esq. – May 10, 2013 Update

Real Cases in Real Estate is a weekly update on real estate law, with legal principles illustrated and explained by lawsuits from around the country. The topics are wide-ranging for appeal to a broad spectrum of readers including lawyers, homeowners, investors and the general public. Andrea Lee Negroni...

Responding to Kelo v. New London: New Jersey Enacts Statutory Reforms to Eminent Domain Powers Under Local Redevelopment and Housing Law

New Jersey Governor Chris Christie recently signed into law A-3615 (the "Act") [ enhanced version available to lexis.com subscribers ]., which codifies recent New Jersey court holdings providing the state's property owners with greater procedural protections from eminent domain under the...

Judge Finds No “Taking” Of Property in FDA Tomato Warning

By Stefanie Jill Fogel In 2008, the FDA issued a warning that tomatoes from Texas and New Mexico might be contaminated with salmonella, but did not prohibit their sale. In the wake of plummeting tomato sales, a group of growers sued the US government for compensation for a regulatory taking. On September...

Rising Sea Levels and Prohibited "Takings" - A Different Sort of Climate Change Litigation

A little noted anniversary passed last month. The odd 2009 storm, Nor’Ida (the progeny of a nor’easter and a hurricane), swept along the east coast pounding some areas with record storm surge five years ago in the second week of November. Who is keeping Nor’Ida’s memory alive...

Gillette Stadium Abutter Gets New Trial In $2 Million Eminent Domain Case

Parking Lot Owner Allowed To Introduce Evidence of Future Development Potential I have not written about eminent domain on this blog. This isn’t intentional because the topic is one of the most interesting aspects of real estate law, although it does not come up very much in the residential...

Neighborly or Trespassing? Equitable Easement and Portable Patio Furniture

By Ronald L. Richman A landowner who uses a portion of his neighbor's property without permission is a trespasser. An exception to this general rule occurs when the trespasser's use of his neighbor's property meets the legal requirements of a prescriptive easement, or the legal right...

Migratory Bird Treaty Act Enforcement Questioned

The U.S. Court of Appeals for the Fifth Circuit has ruled that the Migratory Bird Treaty Act (“MBTA”), [subscribers can access an enhanced version of this Act: lexis.com | Lexis Advance ], only criminalizes acts related to hunting or poaching, not omissions that unintentionally kill birds...