2013

It’s easy to report when you win a case, not so easy when you … don’t (at least not yet).

That’s the result in this stage of the Hawaii reapportionment case, as yesterday, a three-judge U.S. District Court denied the plaintiffs’ motion for summary judgment and entered summary judgment for the state defendants. We represent the plaintiffs by the way. Here’s the court’s Opinion and Order Denying Plaintiffs’ Motion for Summary Judgment and Granting Defendants’ Motion for Summary Judgment.

We won’t comment on the case, but we can repeat what we told the papers:

We always believed that the issues in this case merited resolution by the U.S. Supreme Court. We were hoping that a favorable decision from the Hawaii District Court would save us from taking it further, but alas no. While we have not finished reviewing the Hawaii District Court’s rationale in detail, everything we’ve…

Continue Reading Three-Judge District Court: No Equal Protection Violations In Excluding Military From Reapportionment Population, Or in 44% Deviation

We’ve been offline for a few days, but wanted to pick up this decision in an important case we’ve been following about the valuation of protective dunes on the Jersey Shore, and general and special benefits.

In Borough of Harvey Cedars v. Karan, No. 070512 (July 8, 2013), the New Jersey Supreme Court held that a jury is entitled to determine whether the diminution in value caused by construction of barrier dunes on private property, which block the view of the owners and thus must be compensated, can be offset by claimed special benefits by the dunes to the property. The Borough asserted that the dunes resulted in special protection to the property, and enhanced its value. The intermediate appellate court held that the Borough’s evidence was not admissible, but the Supreme Court reversed.

As reported by the New York Times:

They are “waiting for the good old…

Continue Reading New Jersey: Dunes That Protect Everyone Get Paid For By A Few

Another date to save on your calendar: the 2014 Conference of the International Academic Association on Planning, Law, and Property Rights will be held from February 11-14, 2014 in Haifa, Israel, at Technion-Israel Institute of Technology. The Conference will include the usual presentations, plus day-long workshops, and excursions. You don’t need to be a PLPR member (although joining is free), nor do you have to be an “academic.”

We attended the 2013 PLPR Conference in Portland, and it was well worth it. The message of PLPR is “Planning matters. Law matters. Property matters,” and the 2013 Conference delivered, with presentations on those topics with an emphasis on international practices.

The 2014 event is chaired by Professor Rachelle Alterman, who, among other accomplishments, edited Takings International (2010), a book our ABA Section published that is a comparative study of how what we call regulatory takings are treated worldwide.

Continue Reading 2014 Planning, Law, And Property Rights Conference – Haifa

Here’s one we’ve been meaning to post for a few days because it involves the nuts-and-bolts of eminent domain and inverse condemnation work — the calculation of just compensation and damages, and another victory for colleague Thor Hearne.

In a rails-to-trails taking case our of Florida, McCann Holdings, Ltd. v. United States, No. 07-4261 (June 27, 2013), the Court of Federal Claims awarded $3.1 milllion for the taking, which the government claimed was valued at only $825,000. 

We won’t walk through the entire case, but the court’s Opinion and Order is a very good roadmap for how to calculate severance damages in a partial taking of an easement.

Here’s more about the decision from the local paper.

McCann Holdings, Ltd. v. United States, No. 07-4261L (Fed. Cl. Jun 27, 2013)


Continue Reading CFC Provides Roadmap For Proving Damages And Just Compensation

Here’s the amicus brief filed today by Pacific Legal Foundation in Mehaffy v. United States, No. 12-1416 (cert. petition filed June 5, 2013).

That’s the case in which the Supreme Court is being asked to review to review the Federal Circuit’s unpublished opinion in which the court affirmed the Court of Federal Claims’ grant of summary judgment to the government, holding that Mehaffy failed the Penn Central test solely because he purchased the property alleged to have been taken after the governmentt adopted the Clean Water Act.

PLF has posted a more in-depth summary of the case and the arguments in its brief here.

The cert petition is posted here, and another amici brief urging the Court to grant the writ is posted here.

Brief Amicus Curiae of Pacific Legal Foundation in Support of Petitioner, Mehaffy v. United States, No. 12-…


Continue Reading One More Amicus Brief In “Investment-Backed Expectations” Case: Can’t Regulate Away Right To Compensation

Generally, we don’t plug seminars that might compete with our own, but in this case, we made an exception because the faculty for this one consists of three people we could just not go without hearing from.

On Thursday, July 11, 2013, Law Seminars International is sponsoring “Koontz v. St. Johns River Water Management District – Implications for Property Owners and Local Government,” featuring our Owners’ Counsel of America colleagues Michael Berger and Amy Brigham Boulris, and our favorite foil, lawprof John Echeverria, as they “assess the implications of this important decision and provide practical guidance for both defending and pursuing regulatory takings claims.”

Here’s what we suggest: participate in their program on July 11, then tune into ours (which features both Koontz and Horne) the following day. Continue Reading Koontz Teleconference – July 11, 2013

Here’s some of the stories and commentary we’ve been reading about the Supreme Court’s decision in Koontz v. St. Johns River Water Management District, No. 11-1147 (June 25, 2013:

…
Continue Reading Koontz Round-Up

Do regulations that exist at the time that a property owner purchases his land negate any expectation that he will be able to use the land productively? Not according to this amici brief, filed today in Mehaffy v. United States, No. 12-1416 (cert. petititon filed June 5, 2013).

The cert petition asks the Supreme Court to review the Federal Circuit’s unpublished opinion in which the court affirmed the Court of Federal Claims’ grant of summary judgment to the government, holding that Mehaffy failed the Penn Central test solely because he purchased the property alleged to have been taken after the governmentt adopted the Clean Water Act.

The amici brief, filed by the National Federationof Independent Business Small Business Legal Center, the Cato Institute, and the Chapman Center for Constitutional Jurisprdence poses the Question Presented this way:

In Palazzolo v. Rhode Island, 533 U.S. 606 (2001), this Court…

Continue Reading Amicus Brief In “Investment-Backed Expectations” Case: Are Most Takings Claims Snuffed Out At Transfer Of Title?

We’ve commented on the various plans (mostly backed by a private venture capital outfit out of San Francisco) to have local municipalities seize underwater-but-performing morrtgages by eminent domain (see here and here, for example). Apparently the brainchild of Cornell lawprof Robert Hockett and sold as a “no lose” situation (see “Paying Paul and Robbing No One: An Eminent Domain Solution for Underwater Mortgage Debt“), the city of North Las Vegas was the first municipality to bite.

Yesterday, chapter 2: someone named “Gregory P. Smith” filed suit in federal court seeking to invalidate the plan. The complaint seeks declaratory and injunctive relief for violations of the Public Use Clauses of the U.S. and the Nevada Constitutions, the Due Process Clauses, the Contracts Clause, the Commerce Clause, and Nevada eminent domain statutes.

Who is Smith, and how does he have standing? We’re not sure, because…

Continue Reading It Begins: Plan To Seize Underwater Mortgages Challenged In Federal Court

Some things are constant: the speed of light, the sun rises in the east. And Professor John Echeverria, the well-known environmental lawprof, has never met a taking he’s liked.

Even if that means disagreeing in one takings case with Justice Ginsburg writing for a unanimous Supreme Court, the unanimous Court in another takings case, or, as in his op-ed in today’s New York Times, “A Legal Blow to Sustainable Development,” it means arguing that the Court’s ruling in Koontz v. St. Johns Water Management District, No. 11-1147 (June 25, 2013) says what it doesn’t necessarily say.

The op-ed merits careful reading.

First, he argues that “[t]he district made clear that it was willing to grant the permit if Mr. Koontz agreed to reduce the size of the development or spend money on any of a variety of wetlands-restoration projects designed to offset the project’s…

Continue Reading Surprise! Environmental Lawprof Dislikes Koontz