2011

The District of Columbia Court of Appeals has issued yet another opinion about the redevelopment taking of Skyland Shopping Center.

DeSilva v. District of Columbia, No. 10-CV-1069 (Feb. 24, 2011) is not a compelling opinion, nor even a very interesting read; but it is worth a few minutes of your time since it is the tail end of a long-running tale, and what seems to be the end game in a situation that has resulted in at least five other opinions:  Rumber v. District of Columbia, 487 F.3d 941 (D.C. Cir. 2007); Franco v. National Capital Revitalization Comm’n, 930 A.2d 160 (D.C. 2007); Franco v. District of Columbia, 3 A.3d 300 (D.C. 2010); and Rumber v. District of Columbia, No. 09-7035 (D.C. Cir. Feb. 26, 2010) (per curiam); and Oh v. National Capital Revitalization Corp., 7 A.3d 997 (D.C. 2010).Continue Reading DC Ct App: Final Chapter In The Skyland Condemnations?

mallThousands of years from now, when future archaeologists and historians are reconstructing our civilization from the ruins, it is easy to imagine how they might misinterpret the function of shopping malls. Rather than climate-controlled centralized temples of consumerism, or teen hangouts with abundant parking, the historical record might suggest that malls were august civic centers — fora for political debates complete with speaker’s corners, which even included centralized feeding areas to insure the debaters’ sustenance.

And if they are reading the California Reports, they might be right.

Revisiting the issue of speech at shopping malls, the California Court of Appeal (2d District) held in Best Friends Animal Society v. Macerich Westside Pavilion Property LLC, No. B221067 (Mar. 2, 2011) that a shopping center’s rules giving preferential treatment to labor speech violate the California Constitution’s free speech clause. The shopping mall’s rules could not favor speech about labor issues…

Continue Reading Cal Ct App: Shopping Center Cannot Allow Labor Protests, But Restrict Other Protests

Honolulu attorney Jay Fidell (who also produces Think Tech Hawaii) writes a regular column in the Honolulu Star-Advertiser. This week, he focuses on land use in “Labyrinthine land-use law suffocating isle economy,” where he writes:

Everyone knows our state, like others, is in a fiscal and economic crisis. We need to revitalize our sagging economy, and fast. The governor has made this an absolute priority, and he’s right — we all have to work together to improve the economy, and that frankly includes all three branches of government.

The elephant in the room is land use, which was clear at a recent Hawaii land-use law seminar. Developers have to run a backbreaking gantlet before they can build anything. Environmental laws are increasingly used to stop projects, even if the real motivation isn’t environmental but just NIMBY (“not in my backyard”). The result: Projects have become prohibitively…

Continue Reading Fidell: “Labyrinthine land-use laws suffocating isle economy”

At yesterday’s debate (video archived here) sponsored by Honolulu Civil Beat, “Knowing the Past, Shaping the Future” about the problems that have arisen in Hawaii in the time since the publication of the book The Price of Paradise 20 years ago, U. Hawaii lawprof David Callies revealed a stunning statistic. He noted that the Hawaii Supreme Court “has managed to find in favor of Sierra Club, Friends of the Earth, Earthjustice … 90% of the time, 70% of those decisions overturning the [Hawaii] Intermediate Court of Appeals.”

Whoa.

Callies began by questioning the conclusion reached by most of the book’s essayists that Hawaii is not regulated enough — and that even more government is called for:

I don’t think that’s the problem, folks. The notion that the problems that have arisen over the past 35 or 40 years — or the last 20 years since The Price…

Continue Reading What Advantage Do Environmental Plaintiffs Have In The Hawaii Supreme Court? According To UH Lawprof, A 90% Win Rate

Anyone who is a regular reader of this blog knows Mike Berger. If you don’t immediately recognize his name just check the reports of decisions because you certainly know his cases, which include: Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002), City of Monterey v. Del Monte Dunes at Monterey, Ltd. (1999), Preseault v. ICC (1990), and First English Evangelical Lutheran Church v. County of Los Angeles (1987) in the U.S. Supreme Court, and countless cases in the Federal and California Reports. A frequent speaker and law review author, Mike has been representing property owners in eminent domain, regulatory takings, and inverse condemnation cases for decades.  I have considered Mike a guide who helped me start down the land use law path ever since I read his article “Happy Birthday, Constitution: The Supreme Court Establishes New Ground Rules for Land-Use Planning,” 20 Urban Lawyer 735 (1988).…

Continue Reading “You Mean After You Call Mike Berger?” Appellate Lawyer Honored By Owners’ Counsel

In a recent op-ed, Tennessee attorney Jeremy Hopkins

Al-Qaida, the Klan and property activists? (Jan. 20, 2011) 

A Virginia Department of Emergency Management’s training manual (“Terrorism & Security Awareness Orientation for State Employees”) has labeled “property rights activists” as terrorists.

The manual contains a list of “Terrorist Organizations,” and includes Hamas, al-Qaida, and Hezbollah; street gangs; racist, separatist, and hate groups; and, shockingly, “property rights activists.” They were listed as terrorists because they “undermine confidence in the government” and “influence government or social policy.”

After members of the public became aware of the manual and a legal organization sent a letter to the governor, Virginia replaced “property rights activists” with “property rights extremists: anti-eminent domain.” So, Virginia’s current manual still lists citizens who oppose the government’s use of eminent domain as terrorists.

While the use of eminent domain in accordance with constitutional standards is appropriate, the manual’s characterization of…

Continue Reading Property Rights As Constitutional Rights, Civil Rights

The Washington Supreme Court held that a state statute allowing relocation benefits to property owners displaced by an exercise of eminent domain does not impliedly allow the property owner to recover prejudment interest on the award:

This case involves whether interest is allowable as part of an award of relocation assistance benefits under the relocation assistance—real property acquisition policy (Relocation Act), chapter 8.26 RCW. Division Three of the Court of Appeals held that Union Elevator was entitled to interest on its award of relocation assistance benefits because the Relocation Act impliedly waived the State’s immunity from interest as part of the broad range of financial assistance available under the act. We hold that the Relocation Act cannot reasonably be construed to waive sovereign immunity for interest on relocation assistance awards and reverse the Court of Appeals.

Union Elevator & Warehouse Co. v. State of Washington DOT, No. 83771-6, slip…

Continue Reading Washington S Ct: Eminent Domain May Cause Relocation, But Relocation Benefits Statute Cannot Be Read Together With Eminent Domain Statute

Michael Galinsky, Suki Hawley, and David Beilinson, the makers of “Battle of Brooklyn,” a documentary about the controversial Atlantic Yards project, screened a rough cut of their film last night at the American Law Institute-American Bar Association’s eminent domain law conference. It’s an inside look at one property owner at the business end of eminent domain.

This morning, I had a chance to sit down briefly with Michael in the lobby of the Hyatt Coral Gables and talk about what brought this film about. 

(24 minutes)

Stream the podcast above, or download it here (33mb mp3).

Here’s a summary of “Battle of Brooklyn” —

The film is the only intimate look at the very public and passionate fight waged by owners and residents facing condemnation of their property to make way for the controversial Atlantic Yards Project, a massive plan to build 16 skyscrapers and a basketball…

Continue Reading Interview With The Filmmaker: Michael Galinsky On “Battle of Brooklyn”

AliabaAt today’s ALI-ABA annual conference on eminent domain law in Coral Gables, Florida, Tony Della Pelle (NJ Condemnation Law blog) and I (in a session moderated by Nancy Myrland) presented “The ‘Social’ Lawyer: New Media Strategies for Marketing Your Eminent Domain Practice,” about how eminent domain attorneys can use social media for business development or simply to keep up on the latest cases. For those of you who were with us in person or on the webcast, here are some of our favorite law blogs. And, if you couldn’t join us, you really should consider it next year since the conference features stellar faculty, all experts in the field of condemnation and eminent domain law.

These are the essential blogs in our area of practice:

  • Gideon’s Trumpet – this blog, published by Gideon Kanner, is the equivalent of a nonstop eminent domain conference, since Gideon shares his

…
Continue Reading Eminent Domain & Property Law Blogs From Today’s ALI-ABA Session

This just in: the U.S. Court of Appeals for the Federal Circuit has issued an opinion in Klamath Irrigation District v. United States, No. 2007-5115 (Feb. 17, 2010), a case we’ve been watching.

I’m at the ALI-ABA conference on eminent domain in Coral Gables, Florida, so won’t have the chance to digest and summarize the rather longish opinions (34 page majority, 8 page concurring) for a few days, but I wanted to get it out so blog readers could review it while I’m tied up teaching at the conference.

The Federal Circuit vacated the Court of Federal Claims’ dismissal of the plaintiffs’ takings and breach of contract claims. It sent the case back to the CFC to allow the plaintiffs the opportunity to prove they possess water rights under Oregon law. The CFC had concluded that they did not, but on appeal, since whether an owner possesses Fifth Amendment…

Continue Reading Federal Circuit: Water Rights, Once Proven, Are Fifth Amendment “Property”