2009

An Alaska borough has sought Supreme Court review of the Ninth Circuit’s determination in Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586 (9th Cir. 2008) (a decision we analyzed here). The cert petition is posted here (No. 08-1052).

The Ninth Circuit held a property owner has two choices when faced with what it believes is an erroneous determination by the Corps of Engineers that property contains wetlands: either (1) apply for a very expensive Clean Water Act permit, or (2) don’t get a permit and challenge the Corps’ jurisdiction when the federal government brings criminal or civil charges. The court held that since the Corps’ jurisdictional determination is not a final agency action, the property owner cannot immediately challenge it under the Administrative Procedures Act. 

The borough wanted to develop a parcel fora playground, athletic fields, and associated infrastructure, and askedthe…

Continue Reading New Cert Petition – Corps’ Clean Water Jurisdiction Determination Is Reviewable Now

In Building Industry Ass’n of Central California v. City of Patterson, No. F054785 (Cal. Ct. App. Mar. 2, 2009), the California District Court of Appeal held that the city could not increase an in-lieu affordable housing exaction from $734 to $21,000 per house, because it failed to show the increase was attributable to the development.

The City of Patterson entered into a development agreement with the landowner in which the city agreed the owner would pay only those affordable housing fees in effect at the time the agreement was executed. The agreement recognized, however, that the exaction may be increased and that the city was preparing an “updated analysis.” The owner agreed to pay the revised exaction, provided it was “reasonably justified.” Predictably, the city revisited the exaction schedule and after study that changed the methodology of calculating the fee, revised it to $20,946 per market rate unit. After…

Continue Reading Cal. Court of Appeal Strikes Down Out-Of-Proportion In-Lieu Affordable Housing Exaction

The Cato Institute has filed an amicus brief supporting the petitioner in Empress Casino Joliet Corp. v. Giannoulias, No. 08-945 (cert. petition filed Jan. 21, 2009). In that case, the Illinois Supreme Court held (896N.E.2d 277 (Ill. 2008) that a regulation which imposes a 3%”surcharge” on Illinois casinos with gross receipts over $200 millionper year, and then gives the money to horse racing tracks is not ataking of property. Several casinos challenged the law asserting,among other arguments, that the redistribution of their money to trackswas a taking.  The Illinois Supreme Court held that the regulation was a tax, and not subject to takingsanalysis. The cert petition asks:

In this case, the Illinois Supreme Court held that a state lawtransferring the revenues of four Illinois casinos to five Illinoishorse-racing tracks is categorically not susceptible to challenge underthe Takings Clause of the Fifth Amendment because, in that court’sview, “regulatory actions…

Continue Reading Is Robbing Peter To Pay Paul A Taking?

In Lichoulas v. City of Lowell, No. 08-1485, 08-2023 (1st Cir., Jan. 30, 2009), the U.S. Court of Appeals declined to rule on a property owner’s objection to a taking for redevelopment, holding that public use challenges belong in state court. Interestingly, the court cited Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) for the proposition that “any objection to the taking, or deficiency in adequate compensation, could be and preferably is to be done in state proceedings.” Slip op. at 6.

In 2006, the city took Lichoulas’ property, on which sat a hydroelectric power facility, inactive since 1994. The Federal Energy Regulatory Commission earlier sent a notice to the owner that unless the facility began operating, it would consider the federal license abandoned. The property owner responded that he would forward a work plan to FERC, but it was never…

Continue Reading First Circuit: Williamson County Applies To Eminent Domain Challenges

Little-pink-house

[This review was originally published in the Honolulu Star-Bulletin on September 20, 2009]

You remember that line in the Stevie Wonder classic — “For once I can say this is mine, you can’t take it“?

It turns out they can.

In 2005 in Kelo v. New London, the U.S. Supreme Court held the government can take a home and give it to a developer if the developer is projected to pay more taxes. Your property can be condemned if someone else may make “better” use of it than you do.

A new book, “Little Pink House: A True Story of Defiance and Courage,” tells the story of Susette Kelo, the case’s namesake who owned a little pink house in Connecticut taken by eminent domain. It’s not a dry recounting of legal doctrines, but a fast-paced insider account explaining why property owners resist losing their land even in…

Continue Reading Book Review: Little Pink House — A True Story Of Defiance And Courage

Lph Certain addresses — real and fictitious — are instantly recognizable: 1600 Pennsylvania Avenue NW, Washington, DC and 221B Baker Street, London for example.

8 East Street, New London, Connecticut, however, isn’t an address that most people recognize. 

is the former address of the “little pink house” which is the subject of Jeff Benedict’s Little Pink House – A True Story of Defiance and Courage (Grand Central Publishing 2009) (available from Amazon here)

County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (2008) 

Disclosure: we filed an amicus brief (posted here) supporting Susette Kelo’s arguments in the U.S. Supreme Court.Continue Reading Book Review: Little Pink House – A True Story Of Defiance And Courage

Articles and books

Takings, Eminent Domain, and Land Use: Sublimating Municipal Home Rule and Separation of Powers in Knick v. Township of Scott, 47 Fordham Urb. L.J. 509 (2020)

Takings and Land Use: Restatement (SCOTUS) of Property: What Happened to Use in Murr v. Wisconsin? 87 UMKC L. Rev. 891 (2019) Takings:

Property and Land Use Law: Back to the Future of Land Use Regulation, 7 Brigham-Kanner Prop. Rts. J. 109 (2018)

Takings and Land Use: Murr v. Wisconsin: The Supreme Court Rewrites Property Rules in Multiple-Parcel Regulatory Takings Cases, 41 Zoning & Planning Law Report 1 (2018)  

Sharing Economy and Takings:  “Property” and Investment-Backed Expectations in Ridesharing Regulatory Takings Cases, 39 U. Haw. L. Rev. 301 (2017).

Appellate Law: Federal Appellate Practice Manual (Haw. St. Bar Ass’n 2014) (chapters on Briefing – Merits and Amicus, and Supreme Court Review)

Eminent Domain and Takings:…

Continue Reading Publications

Some interesting items have crossed my desk on Friday and Saturday:

  • From the Grand Theft: Property blog, Jim Mattson posts his thoughts about Monks v. City of Rancho Palos Verdes, 67 Cal. App. 4th 263 (Cal. Ct. App. 2008), the case in which a California Court of Appeals held that a municipality’s development moratorium was a Lucas taking.
  • From the New York Zoning and Municipal Law blog comes a summary and analysis of the recent oral arguments in the latest phase of the Atlantic Yards eminent domain fight from Brooklyn. 
  • More on AmeriSource v. United States, No. 08-497 (cert. petition filed Oct. 15,

…
Continue Reading Weekend Round-Up

Your first reaction to this post’s title may be “well, duh!”

But wait, there’s more.

In Empress Casino Joliet Corp. v. Giannoulias, 896 N.E.2d 277 (Ill., June 5, 2008),the Illinois Supreme Court held that a regulation that imposes a 3%”surcharge” on Illinois casinos with gross receipts over $200 million per year, and then gives the money to horse racing tracks is not a taking of property.  Several casinos challenged the law asserting, among other arguments, that the redistribution of their money to tracks was a taking.  The Illinois Supreme Court rejected the argument; the court’s taking analysis begins at page 14 of the slip opinion. The court held that the regulation was a tax, and not subject to takings analysis:

[W]e conclude that the surcharge at issue here is not subject to a takings challenge. The Act does not involve an interest in physical or intellectual property, nor does

…
Continue Reading New Cert Petition: The Government Can “Take” Money

At first, it was a bit odd to see Washington, D.C. attorney Kannon Shanmugam, counsel for the Office of Hawaiian Affairs in the “ceded lands” case immediately concede in oral argument that the U.S. Supreme Court should rule against OHA — and hold the Apology Resolution was simply a symbolic statement of regret — if the Hawaii Supreme Court’s decision relied on it. Responding to a question from Justice Ruth Bader Ginsburg, he stated: 

Let me — let me be clear about this, Justice Ginsburg,if the Hawaii Supreme Court’s opinion is read to construe the ApologyResolution as creating some affirmative duty or obligation as a matterof Federal law, we agree that that would be erroneous. And if the Court–

Tr. at 31.  Later, Shanmugam again conceded the point:

Andit’s for that reason, Justice Ginsburg, that we freely concede that ifthe Hawaii Supreme Court had relied on the Apology Resolution…

Continue Reading Argument To SCOTUS: “Don’t Taze Me, Bro!” — What Was Really Going On In The “Ceded Lands” Oral Arguments?