2011

The Supreme court has declined review of Colony Cove Properties, LLC v. City of Carson, 640 F.3d 948 (9th Cir. 2011), the case in which the Ninth Circuit affirmed the dismissal of a property owner’s claim that the city’s mobilehome rent control ordinance is a taking. The district court dismissed the facial takings claim because it was filed outside the statute of limitations, and the as-applied takings challenge as unripe.

The cert petition asked the Court to overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the source of the Court’s oft-maligned ripeness doctrine in regulatory takings. This was another in a recent in a series of petitions (see here and here for two others) asking the Court to revisit Williamson County, and we’ve criticized the case and its ripeness rules as illogical, unfair, and not the result of a…

Continue Reading Williamson County Still Lives: Cert Denied In Colony Cove

Here’s what we are reading this Thursday:

  • Appeals Court Declines Invitation To Destroy Land Use Law As We Know It – from the Massachusetts Land Use Monitor blog: “Now that the Appeals Court has reminded us of the permanence of permit conditions, anyone who receives a permit with a restrictive condition should think twice about whether that condition is a proper exercise of municipal authority, or whether an appeal should be taken in an effort to modify or strike a condition that will otherwise burden the land for time immemorial.”
  • The ‘Public Uses’ of Eminent Domain: History and Policy – (hat tip to PropertyProf blog for the heads-up) – “This paper examines the effects and implications of the ‘public use’ requirement for the exercise of eminent domain in the United States. It is part of an ongoing inquiry the consequences of eminent domain in the United States. The first part examines the history

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Continue Reading Thursday Links: Public Use, Mass Court Saves Land Use, Judicial Takings

According to the ABA Journal, Justice Antonin Scalia said this:

Justice Antonin Scalia predicted Monday that the Supreme Court’s decision in Kelo v. City of New London will be overturned.

Speaking to students at the Chicago-Kent School of Law, Scalia criticized the decision allowing the city of New London to use eminent domain to seize property for economic development, the Chicago Sun-Times reports. “I do not think that the Kelo opinion is long for this world,” Scalia said.

Scalia ranked Kelo among the top cases in which the court made a mistake of political judgment, according to the Sun-Times account. The others were the Dred Scott v. Sanford decision in favor of a slave owner and the Roe v. Wade decision finding a constitutional right to abortion.

“My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence,” Scalia said. “But it…

Continue Reading Scalia: Kelo = Dred Scott = Roe

Save the date: on Thursday, December 1, 2011 (1:00pm-2:30pm EST, 10:00am-11:30am PST) we’ll be presenting the on-line seminar “Eminent Domain: Redevelopment Challenges for Local Governnment – Navigating Federal Funding Requirements, Challenges for Public Utilities in Right-of-Way Projects, and Objections to Taking for Public Use.“

Joining me are colleagues Anthony Della Pelle (McKirdy & Riskin – New Jersey), J. Casey Pipes (Helmsing, Leach, Herlong, Newman & Rose – Alabama), Rick E. Rayl and Bradford Kuhn (Nossaman – California), and Mark M. Murakami (Damon Key Leong Kupchak Hastert – Hawaii).

Each member of the faculty should be well-known to our readers: Tony publishes the New Jersey Condemnation Law blog and is a frequent speaker at the annual ALI-ABA eminent domain program. Casey is with the Owners’ Counsel member firm from Alabama and Co-Chair of the ABA Litigation Section’s Condemnation, Land Use, and Zoning Law Committee. Rick and Brad produce…

Continue Reading Upcoming National Webinar – Eminent Domain: Redevelopment Challenges for Local Government

On behalf of the Star-Advertiser, today we filed a motion for summary judgment in the case which seeks disclosure of the JSC list from the Governor. More here from the Star-Advertiser. The hearing is set for November 9, 2011.

The Complaint is posted here, and the Governor’s Answer is posted here.

Motion for Summary Judgment, Star-Advertiser v Abercrombie, No. 11-1-1871-08 (filed 10-18-2011)Continue Reading Motion For Summary Judgment In JSC List Case

Here are all the posts from the 8th Annual Brigham-Kanner Property Rights Conference, held this year in Beijing, China:

        HeaderContinue Reading Brigham-Kanner Property Law Conference (Beijing)

        At the U.S. Embassy in Beijing last Thursday, Justice Sandra Day O’Connor was presented this year’s Brigham-Kanner prize. She was not able to attend in person, so delivered her acceptance speech by videotape. In her talk, she discussed the property-related opinions which she either authored or joined, including Midkiff, Nollan, Dolan, Yee, and Kelo. 

        The B-K Conference was not simply a celebration of her writings, and there was frank discussion of whether her opinions helped or hurt property owners overall. More on that in a separate post. Continue Reading Brigham-Kanner Conference: Justice O’Connor’s Acceptance Speech

        Yosemite_conference One conference down, one to go.

        We’re on the way back from the Brigham-Kanner Property Rights Conference in Beijing, and on our way to the California State Bar Environmental Law Section’s annual conference at Yosemite N.P., which begins later this week. More information about the conference here.

        Along with U.C. Berkeley law professor Joseph Sax and Deputy California Attorney General Daniel L. Siegel, I will be speaking about “Regulatory Takings: Looking Back and Looking Forward.” E. Clement Shute will moderate the panel discussion.

        We will be discussing the seminal regulatory takings cases from the past 20 years. “The panelists, who have been involved in several of the most significant takings cases since even before the founding of the annual Yosemite Environmental Law Conference twenty years ago, will highlight key decisions, offer their views on the evolution of takings law, and discuss cutting-edge issues raised by more recent…

        Continue Reading California Bar’s Yosemite Conference: “Regulatory Takings: Looking Back and Looking Forward”

        There were many memorable moments and quotes during the three-plus days of the Brigham-Kanner Property Rights Conference in Beijing. But perhaps the most telling came our way second-hand from an ear witness:

        At the farewell banquet, a prominent American lawyer was toasting the Tsinghua University Law School students, raising his class with the salute “to the future leaders of China!”

        A Tsinghua dean acknowledged the toast, raised his own glass and interjected: “to the future leaders of the world!”Continue Reading Brigham-Kanner Conference: Most Telling Quote

        Well, we were beset by a series of technical difficulties yesterday (the internet connection suddenly spit us out, we were unable to log back on, our laptop just shut off, followed by mysterious battery problems), so we were not able to continue the live blog.(Was it something we said?)

        That’s ok, since by then it was 2 am ET, and I suspect no one but the hardest core of takings nerds were up in the wee hours of Saturday following a live blog. Or at least I hope not.

        What we’ll do instead is post a few of the photos we were able to take (stand by for more from W&M’s professional photographer who is accompanying us), and in a subsequent post (today’s a tour day) summarize our thoughts about this most unusual legal conference.

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        Tsinghua Law School

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        Professor Henry Smith (Harvard) speaking on custom
        and the developing law of…

        Continue Reading Brigham-Kanner Property Rights Conference – Second Day Photos