Amicus Brief: State Takings Claims Are Constitutional (Not Torts); Adverse Possession Statute Of Limitations Is Nearest Analogue

by Robert Thomas, InverseCondemnation, August 7, 2019

Here is the motion asking the Hawaii Supreme Court for leave to file an amicus curiae brief (and the proposed brief) we filed earlier today in a case we've been following. 

The question is the applicable statute of limitations for regulatory takings claims under the Hawaii Constitution's "takings or damagings" clause. The case started out in a Hawaii state court, was removed to the U.S. District Court by the State Land Use Commission. The district court dismissed the state takings claim under the statute of limitations. 

Hawaii has not adopted a statute of limitations expressly for takings or inverse condemnation claims. Thus, the question is what is the closest analogue claim. If there isn't one, Hawaii has a "catch all" statute (six years) for civil claims. When the case reached the Ninth Circuit, that court certified the state law question limitations to the Hawaii Supreme Court. 

Our brief argues the closest analogue to a regulatory takings or inverse condemnation case is adverse possession (which is the majority rule, nationwide). And, we also argue that the tort statute of limitations (2 years) is not applicable because a takings claim does not seek recovery for "damage or injury to . . . property." 

Here's the Summary of Argument from the brief:

1. The answer to the question presented is no: a regulatory takings claim under the Hawaii Constitution does not seek damages for injury to persons or property. Rather, the essential purpose of a takings claim is to compel the government to acknowledge it has taken or damaged private property and that it has an obligation to provide just compensation.

2. This Court has explained that the first step in analyzing whether any statute of limitations governs a claim is to determine “the nature of the claim.” Au v. Au, 63 Haw. 210, 214, 626 P.2d 173, 177 (1981). In an inverse condemnation lawsuit asserting a regulatory taking, a property owner seeks judicial confirmation that a regulation or other government action has gone “too far” in interfering with the owner’s use of property, and thus is tantamount to a condemnation by eminent domain for which the government is obligated to provide compensation.

3. As an obligation affirmatively expressed in the text of Article I, section 20, the government’s duty to provide just compensation is not a creature of statute, regulation, contract, or tort duty, nor is it dependent on a legislative waiver of sovereign immunity. Thus, when property is taken or damaged, the government’s obligation to provide just compensation is self-executing: its categorical duty is to provide compensation which approximates the value a free market would attach to the taken or damaged property.

4. No statute expressly limits regulatory takings or inverse condemnation claims. The most analogous claim is adverse possession (where a non-owner asserts an interest in, or ownership of, the property). The majority national rule is that an owner must let the prescription period lapse (here, twenty years) without an assertion of her rights before she is deemed to have lost her property rights.

5. By contrast, tort, contract, and other civil claims are exceedingly poor analogues. A takings claim does not seek “recovery of compensation for the damage or injury to persons or property,” and therefore is not subject to the personal injury statute of limitations. Importantly, the wrong being remedied in an inverse condemnation action is not the taking itself (because takings are not unlawful, only takings without compensation), and in a takings lawsuit the plaintiff must concede the government’s action is valid. The wrong addressed by a takings claim is the withholding of compensation government has a constitutional obligation to provide.

Br. at 1-3 (footnotes omitted). 

Stay tuned for more. 

PDF: Motion of Owners' Counsel of America for Leave to File Brief Amicus Curiae, DW Aina Lea Dev., LLC v. State...