May 2011

ABA_SLG Next week (May 12 – 15, 2011), the ABA Section of State & Local Government Law is meeting in Portland, Oregon.

This is our Spring Meeting (complete agenda here), and is co-sponsored by the Urban Land Institute and the American Planning Association. In addition to the business and administrative meetings (I promise, the meeting of the Condemnation Law Committee will be brief), we’ve lined up an impressive selection of CLE programs. Topics include:

  • Green Building – This panel will discuss the issues of Green Building Ordinances, ongoing cases involving the preemption of local green building codes under federal law and other challenges and pitfalls with Green Building Ordinance initiatives.
  • Cyberbullying – This program will explore the challenges that the Internet brings to protecting students from harassment while at the same time respecting

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Continue Reading Upcoming CLE And ABA State & Local Govt Law Section Meeting (Portland)

MaheleComes the sad news that retired U.S. Bankruptcy Judge Jon J. Chinen has died. The Star-Advertiser obit noted that he served as Bankruptcy Judge and referee from 1976 to 1993 (I learned bankruptcy law from Judge Chinen, serving for a short time as a judicial extern in his chambers during law school).

There will be a private service, and in lieu of flowers, donations may be made to the Judge Jon J. Chinen Fund at the William S. Richardson School of Law at the University of Hawaii. The address is 2515 Dole St., Honolulu, HI 96822-2350.

To Hawaii land users, Judge Chinen was best known for his seminal publication The Great Mahele: Hawaii’s Land Division of 1848 (U. Haw. Press 1958), which is available on the shelf of nearly every bookstore in Hawaii (and on-line here). It is a quick but detailed summary of the pre-contact system and the Mahele…

Continue Reading Aloha, Judge Chinen

Update: Rick Rayl adds his thoughts about the case and how California state courts might approach the issue here.

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What does a property owner have to do in order to qualify as a “prevailing party” in a federal condemnation action, such that it triggers fee shifting under the Equal Access to Justice Act (EAJA)?

According to the Tenth Circuit in  United States v. Harrell, No. 10-2153 (Apr. 29, 2011), it’s not enough that “the defendant landowners won the judgment, and even though they won $3.8 million — much more than the government ever offered them for their property.” Slip op. at 1. No, in order to “prevail,”  the property owner’s valuation must be closer to the eventual judgment than the government’s, and that valuation must be the valuation you asserted during the proceedings, not some other figure you’d be willing to accept.

The eminent domain provision in…

Continue Reading 10th Cir: Landowner Not “Prevailing Party” Even Though They “Won $3.8 Million — Much More Than The Government Ever Offered Them”