2009

Update: 8/6/2009, 8:00 a.m. HST: our servers are up.  If you sent something earlier but didn’t get a response, please resend.

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8/6/2009, 5:00 a.m. HST: We’re not ignoring you: the hawaiilawyer.com email servers are down for the second night in a row. If you are trying to email us, please stand by, your messages have not yet been delivered.

In the meantime, if you need to contact me, email inversecondemnation@gmail.com.

Continue Reading Programming Note: hawaiilawyer.com email servers are up

A press release from Develop Don’t Destroy Brooklyn links to the opening brief filed recently by the property owners who object to the taking of their property for the Atlantic Yards “redevelopment” project in Brooklyn in Goldstein v. New York State Urban Dev. Corp.

Here’s the summary of the issues presented in the brief:

1. Whether the public use requirement of the NY Constitution imposes amore stringent standard for takings than does the Fifth Amendment—aquestion expressly preserved by the Court of Appeals in Aspen CreekEstates, Ltd. v. Brookhaven (2009), and never before considered by anycourt in New York;

2. Whether the public use requirement of the NY Constitution “issatisfied when a condemning authority determines that he public benefitto be gained by forcibly appropriating citizens’ homes and businessesis ‘not incidental or pretextual in comparison with benefits toparticular, favored private entities,”‘ without ever examining thenature and magnitude of the private benefit…

Continue Reading Property Owner’s Brief In Atlantic Yards Appeal

These past few days, I’ve been attending the annual meeting of the ABA in Chicago. It was a chance to meet new colleagues, associate faces with those whom I’ve only had e-contact, and reacquaint myself with old friends.

I’m also the new Chair of the Condemnation Law Committee of the State & Local Government Law Section. I’m honored to have been delegated the task of leading a group which includes some of the most experienced and learned condemnation lawyers in the country among its members, from both condemnor and condemnee perspective.

One of the jobs of the Chair is to encourage those who are not section and committee members to join us. In that vein, here are some of the benefits of participating:

  • We’ll be continuing our program of regular teleconferences on new cases and hot developments in eminent domain and regulatory takings law. The last call

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Continue Reading ABA Section Of State & Local Gov’t Law – Condemnation Law Committee

AMTRAK

Years ago, during a brief foray in the army, we employed a pretty simple job description: shoot, move, and communicate. This same axiom is an apt summary of our core mission as lawyers: win the case, go where the action is, and keep in contact — both with clients and the public.

The old job summary resurfaced this week as I was yet again on the road, this time to the ABA Annual Meeting in Chicago. This trip, however, deviated from the norm. Rather than fly, I decided to travel Old School: Amtrak’s California Zephyr from San Francisco to Chicago. It had been awhile since I’d been on a long-distance train trek and I was no longer sure what to expect, especially since the world does not pause while I take two and a half days to cover the same distance as a four-hour flight.

It turned out…

Continue Reading “Shoot, Move & Communicate” En Route To The ABA Annual Meeting

In Cloverleaf Realty of New York, Inc. v. Town of Wawayanda, No. 07-3405-cv (July 15, 2009), the Second Circuit held that a dismissal by a state court on statute of limitations ground does not preclude the plaintiff from bringing the same claim in a federal court which has a longer statute of limitations.

Needing to fund water and sewer improvements, the town approved an improvement district which included Cloverleaf’s two parcels. The taxes were assessed ad valorem (on the assessed values of the properties). Notice of the hearing regarding objections was published in the newspaper. After Cloverleaf paid the taxes under protest, it brought an action in New York state court seeking to declare the town’s assessments of Cloverleaf’s property illegal on two grounds. First, that the assessments should have been made on a “benefit basis” — taxation based on each parcel’s proportional share of the benefits — and…

Continue Reading PING: Immigration Adviser in BarkingURL: http://bleacherreport.com/users/1955859-hamza-terkildsenIP: 217.27.150.230BLOG NAME: Immigration Adviser in BarkingDATE: 02/04/2013 12:32:30 AMinversecondemnation.com: Second Circuit: State Court Statute Of Limitations Dismissal No Bar To Federal Claim

When considering a redevelopment authority’s condemnation of what is assumed by all litigants to be a valuable leasehold interest, how does a court determine the lessee is owed nothing, and conclude that nothing is “just” compensation (and indeed, the lessee must pay back the compensation it was previously paid, plus interest)?

Eminent domain mavens already know the answer: the “undivided fee” rule. You know, the doctrine that holds the whole is lesser than the sum of its parts.

The undivided fee rule is a legal fiction requiring a trial courtto ignore reality — when property is heldby more than one interest, valuation is determined as if a single ownerpossessed everything, and the condemnor is not required to compensate eachseparate interest in the property. For example, ifa condemned building is being leased to tenants, compensation ismeasured by the value of the undivided fee simple absolute value of thebuilding, not…

Continue Reading Wisconsin Supreme Court: The Whole Is Lesser Than The Sum Of Its Parts

Mr. Thomas, along with his colleagues in Damon Key’s Land Use Group, is one of the preeminent land use lawyers in Hawaii.

He focuses on issues involving appeals, regulatory takings, eminent domain, water rights, land use (zoning and planning), shoreline issues, navigational servitudes, and voting rights.

He has tried cases and appeals in all levels of Hawaii courts and administrative agencies including county planning commissions, county zoning boards of appeals, and the State Board of Land and Natural Resources.  He has also tried cases and appeals in California and the federal courts, including the Court of Federal Claims.

Mr. Thomas received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where served as editor of the Law Review. 

Robert has been selected by his peers to be included in

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Continue Reading Robert H. Thomas

In a notable case worth following, the Hawaii Intermediate Court of Appeals is considering a new appeal involving whether a per se regulatory takings claim is ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and whether in order to ripen a takings claim, a property owner is obligated to seek a legislative change to the regulations applicable to the property.

In Leone v. County of Maui, No.29696, the trial court refused to consider a property owner’s claim that state law and local regulations resulted in a regulatory taking of beachfront property on the south shore of Maui. The Opening Brief filed by the property owner is available here.

The case involves an undeveloped 1/2 acre beachfront parcel, one of 11 similarly-situated lots. The zoning on the property is “Hotel-Multifamily,” which permits residential use. The Community Plan (Maui County’s…

Continue Reading Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?

“Would that John Adams could rise from his grave tospeak for the VFW, and for property rights in twenty-firstcentury America. I believe he would observe that, if the VFW’sproperty can be taken without compensation, no property issecure.”

So says the dissenting Justice in City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Authority of the City of Milwaukee, No. 2006AP2866 (July 17, 2009), a case in which a sharply divided court (4-3-1) held that under the “unit rule,” the VFW’s property was worthless and the VFW was not entitled to the $300,000 just compensation award.

More detail to follow after a chance to digest the various opinions.

Update: our complete summary of the opinion is posted here.Continue Reading Wisconsin Supreme Court: Property Valueless, So Lessee Not Entitled To Compensation