2012

Thanks to Municipal Minute for pointing out a new blog that should be of interest to our readers. Our friend and colleague Dwight Merriam and his firm are publishing RLUIPA Defense a “one-stop comprehensive site stocked with cases, trial materials, briefs and scholarly articles all about avoiding and defending against claims taken under the Religious Land Use and Institutionalized Persons Act (RLUIPA).”

Our biggest question: how do you pronounce “RLUIPA?” (Practice tip: get the Judge to say it first, then pronounce it the way s/he does.)

If Dwight and his blogmates can resolve that one, we’d be grateful.

Check it out here. Continue Reading New Land-Usey Blog: RLUIPA Defense

It’s the right of homeless folks in L.A.’s “Skid Row” area to not have their personal belongings seized if they leave them unattended for a while, but we will take what we can get.

In Lavan v. City of Los Angeles, No.11-56253 (Sep. 5, 2012), the Ninth Circuit held:

We conclude that the Fourth and Fourteenth Amendments protect homeless persons from government seizure and summary destruction of their unabandoned, but momentarily unattended, personal property.

Read more below. More on the takings angle to the case from the Volokh Conspiracy.

Lavan v. City of Los Angeles, No. 11-56253 (9th Cir. Sep. 5, 2012)Continue Reading 9th Circuit Recognizes Property Rights

Those of you who attended the recent CLE session at the ABA Annual Meeting about Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012) may recall that Professor John Echeverria, the well-known environmental lawprof, said he was writing a brief in the case supporting the government’s arguments, but was looking for a “client.” Well, it looks like he found one: today, the International Municipal Lawyers Association filed this amicus brief in support of the respondent.

In Arkansas Game, the Federal Circuit held that flooding caused by the Corps of Engineers was only temporary, and did not result in a compensable taking merely because it eventually stopped, and “at most created tort liablity.” The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases, and regularly results in awards of …

Continue Reading IMLA Amicus Brief In SCOTUS Flood Takings Case: This Is Not An “Environmental” Case

August 31, 2012 was a big day in the Texas Supreme Court for takings and condemnation lawyers. The court issued three major opinions in our favorite area of law. The first involves a question of public use, the second inverse condemnation, and the third valuation. Trifecta.

Instead of putting our gloss on the opinions, we’ll just post them and excerpts of the summaries from the Supreme Court of Texas Blog.

  • City of Austin v. Whittingthon, No. 10-0316 – From the Supreme Court of Texas Blog: “This is a potentially major takings case about when government can take property for private (rather than public) benefit. The City of Austin took a parcel of land in downtown that was, in short order, folded into a private development. A jury concluded that this taking was made in bad faith, and the court of appeals agreed. Divided 7-2, the Texas Supreme

…
Continue Reading Big Takings Day In The Texas Supreme Court

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There’s still time for you to attend one (or more) of the screenings in our upcoming law film series. In conjunction with the Doris Duke Theatre at the Honolulu Museum of Art, we’re screening five films about lawyers and the law:

  • The Castle (for that eminent domain connection, naturally) (September 4)
  • Counsellor at Law (a forgotten John Barrymore classic about a private lawyer in New York) (September 5)
  • Anatomy of a Murder (James Stewart, George C. Scott, Lee Remick, and Ben Gazzara. Plus a Duke Ellington score) (September 6)

Each film will be introduced by a Damon Key colleague, who will lead a discussion of the issues raised following the…

Continue Reading Still Time To Join Us For The Lawyer Film Series At The Honolulu Museum Of Art

Here’s the latest inverse condemnation opinion from the Wisconsin Supreme Court in a case involving overflights from an adjacent airport. The case arose when property owners asserted that an extension of the runway by 1500 feet was a taking. The trial court dismissed the property owners’ inverse condemnation claims, but the court of appeal reversed and revived their claims.The airport authority sought review by the Wisconsin Supreme Court, which affirmed.

The decision was summarized by the Schober & Mitchell blog:

The Court took into consideration the fact that Wisconsin Statutes Section 114.03 and 114.04 gave property owners certain rights with respect to airspace over their properties. It determined referring to federal case law that the proper standard to be applied in determining whether a taking occurs in airplane overflight cases is whether the government action results in aircraft flying low enough and with such frequency as to have a…

Continue Reading Airspace In Wisconsin Is Property – Overflights May Be A Taking

The Cato Institute, the National Federation of Independent Business, the Center for Constitutional Jurisprudence, and the Reason Foundation have filed an amicus brief in Horne v. United States, No. 12-123 (cert. petition filed July 25, 2012).

This is the case in which the petitioners argue that they are entitled to raise the Takings Clause as a defense to the government’s assertion that they are raisin “handlers,” and thus required to turn over a huge percentage of their raisin crop to the government without compensation. We posted the cert petition here.

As the Cato@Liberty blog details:

Property owners shouldn’t be made to suffer a needless, Rube Goldberg-style litigation process to vindicate their constitutional rights. Yet that is exactly what the U.S. Department of Agriculture seeks to impose on independent raisin farmers Marvin and Laura Horne when they protested the enforcement of a USDA “marketing order” that demanded that the…

Continue Reading Cato’s Amicus Brief In California Raisin Takings Case

Check this out. A report from the Maui News that “Environmental court would be perfect fit here – judge.” Apparently, there is an effort to get the Judiciary or the Legislature to form another court with specialized jurisdiction, either formally like the Family Courts, or more likely on a less formalized basis like the “Drug Courts” that the circuit courts convene.

And who is recommending the formation of such a court? Why a judge from just such a court in Memphis, Tennessee:

“I’ve learned over the years that if you get them by the wallet, their hearts and minds follow,” Potter said to about 100 people at the Maui Arts & Cultural Center.

Potter said that an environmental court here is a perfect fit – and long overdue. There’s just so much to protect and balance in this delicate paradise, he said.

“The environment is everything here. It’s…

Continue Reading Does Hawaii Need An “Environmental Court?” – Doesn’t It Already Have One?

An interesting new complaint filed in U.S. District Court in Hawaii, asserting claims for substantive due process, violation of the zoning enabling act, and the Kauai County Charter.

A owner of property that has been designated for resort development for 35 years is asserting that the adoption by the County’s voters of a charter amendment severely limiting the number of visitor accommodation units (no more than one new unit, and other restrictions), was an attempt to restrict the number of visitors and part-time residents. The complaint asserts that the County has no legitimate interest in restricting tourists or part time residents, and that the charter amendment is a zoning regulation that cannot be adopted by the voters (recall that in Hawaii, zoning ordinances may not be adopted by initiative – thanks to a case we argued many years ago – see here and here).

We’ll keep track of this…

Continue Reading New Complaint Challenging Kauai’s Limit On Visitor Units

Here’s the federal government’s merits brief in Arkansas Game & Fish Comm’n v. United States, No. 11-597 (cert. granted Apr. 2, 2012), the case in which the Federal Circuit held that flooding caused by the Corps of Engineers was only temporary, and did not result in a compensable taking merely because it eventually stopped, and “at most created tort liablity.” The dissenting judge concluded that temporary flooding was no different in kind than more permanent flooding that occurs in other inverse condemnation cases, and regularly results in awards of compensation. The Federal Circuit’s opinion is here.

As you might expect, the brief phrases the Question Presented somewhat differently than the property owner/petitioner’s brief:

The Court of Federal Claims found that during several years in the 1990s, temporary and irregular changes in water releases from a flood-control dam operated by the United States Army Corps of Engineers marginally…

Continue Reading Fed Govt’s Brief: “Temporary And Irregular Inundation Of Wetlands” (Read: Flooding) Is Not A Taking