2013

A short one from the U.S. Court of Appeals for the Fifth Circuit. In RBII, L.P. v. City of San Antonio, No. 11-50626 (Apr. 23, 2013), the court overturned a jury verdict that the city violated the due process and Fourth Amendment rights of a property owner when the city demolished its building without first providing notice that it was going to do so.

The city believed a structure owned by the plaintiff was dilapidated and a danger, and needed to be demolished immediately. The city undertook environmental review, exhausted its internal procedures for demolition, notified the Historic Preservation office, turned off the utilities, and checked the permit register to see if any repairs were made. It accomplished this all in about two weeks. But it didn’t notify the property owner before it took down the structure.

The owner filed suit in state court, and the city removed it…

Continue Reading Fifth Circuit: City Not Required To Give Notice Prior To Demolishing Building If It Merely Believed There Was An Emergency

Ah, the world of academia: ivy-covered walls, the strains of gentle theoretical debate, three months off in the summer, free coffee in the faculty lounge.

[Here’s where the movie trailer has that cliché screeching sound of a record being scratched – by the way, do those raised on CD’s and mp3’s even understand what this sound is supposed to represent?]

Here’s an academic debate that’s more of a brawl, between two of the big guys, Harvard Law’s Mark Tushnet and NYU/Chicago Law’s Richard Epstein over Professor Epstein’s recent book Design for Liberty: Private Property, Public Administration, and the Rule of Law.

In his book review, Professor Tushnet apparently didn’t care too much for Epstein’s conclusions, labeling him a “sentimental optimist,” and criticizing his reasoning as thin:

Epstein is a notably engaging speaker. I was surprised, therefore, that I found Design for Liberty harder to read than I expected. As…

Continue Reading Prof Fight: Epstein v. Tushnet

When reading the Ninth Circuit’s latest foray into the regulatory takings doctrine which holds that a muncipal rent control ordinance did not qualify under Penn Central (MHC Financing Ltd P’ship v. City of San Rafael, No. 07-15983 (Apr. 17, 2013), we were reminded of the opening line in Andy Williams’ signature tune “Love Story” —

“Where do I begin …”

But before we begin, two preliminary thoughts. First, the district court’s decision finding that San Rafael’s mobile home rent control ordinance worked a taking of the mobilehome park owner’s property because it reduced the value by more than 80% was not some one-off aberration by a conservative district judge out on a lark. No, the decision was by the now-retired Vaughn R. Walker, the same judge who invalidated California’s Proposition 8 in one of the same-sex marriage cases currently before the Supreme Court.

Continue Reading The Ninth Circuit Botches Regulatory Takings Again

Earlier this week, the Hawaii State Bar Association’s Appellate Law Section put on a one-hour MCLE session on federal appeals featuring Ninth Circuit Judge Richard Clifton, our Damon Key colleague Mark M. Murakami, and Clare Connors (Davis Levin).

While you can no longer earn MCLE credits (next time, attend in person!), you can take advantage of their tips and hints for how to win that next federal appeal. And most of the information is not limited to Ninth Circuit practice, so the rest of y’all should find benefit also.Continue Reading Federal Appeals: Tips And Hints

This just in: the Ninth Circuit has issued an opinion in MHC Financing Ltd P’ship v. City of San Rafael, No. 07-15983 (Apr. 17, 2013), reversing the District Court’s decision that the city’s mobilehome rent control ordinance was a taking under Penn Central.

More, after a chance to review the opinion.

MHC Financing Ltd. P’ship v. City of San Rafael, No. 07-15982 (9th Cir. Apr. 17, 2013)


Continue Reading Ninth Circuit: No Penn Central Taking In Rent Control Ordinance

Here’s one to brighten your day, courtesy of the the U.S. District Court for the Middle District of Flordia (that’s Tampa, to all you non-Floridians). In Hillcrest Property, LLP v. Pasco County, No. 8:10-cv-819-T-23TBM (Apr. 12, 2013), the court held the county’s “Right of Way Preservation Ordinance” that allows it to land bank for a future road corridors by means of an exaction (more details on the ordinance below), is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation.” Slip op. at 4.

We’ve seen this situation before — the government wants to build roads, but it either doesn’t have the money to buy or condemn the necessary property to do so, or it simply figures it can get it another way. The county had such plans, and designated future transportation corridors on its comprehensive plans. In 2005, the county adopted the…

Continue Reading Fla Fed Ct: Exaction Scheme Is “Constitutional Mischief” To Avoid “Nettlesome Payment of ‘Just Compensation’”

When the cert petition was filed in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012), we wrote that the case seemed like a good vehicle for the U.S. Supreme Court to revisit the pretext-in-eminent-domain issue it teased us with in Kelo, especially the part about the taking being part of a “comprehensive” eminent domain plan.

The facts of the case were egregious. The Guam Supreme Court’s opinion reversed the trial court’s conclusion that the taking was unconstitutional. The Guam Government refused to appeal, leaving only the benefitted private party arguing the taking was valid. The petition was well done and highlighted the lower court split in authority. When the respondent waived a reponse, the Court requested one. The petition was supported with an amici brief authored by lawprof Ilya Somin, a noted scholar on public use issues and joined by other legal…

Continue Reading Sorry, Property Owners. Supreme Court Just Not That Into You

Earlier today, the Supreme Court considered whether to grant review in City of Tombstone v. United States, No. 12-1069 (cert. petition filed Feb. 27, 2013).

The City of Tombstone‘s cert petition asks whether the city “is likely to succeed on the merits of the claim that the Forest Service violated the Tenth Amendment by … [impeding] restoration of essential municipal infrastructure during a State of Emergency.”

  • Here’s the amici brief we filed in support of the city.
  • Here’s the amicus brief by a coalition of Arizona/New Mexico counties. 

While we await next week’s order announcing whether the Court will hear the case, here’s the Federalist Society’s podcast of a recent debate on the issues in the case:

Tombstone, Arizona, calls itself “the town too tough to die,” but it’s gone to court to challenge the federal government’s restriction on access to nearby national forest land that the city…

Continue Reading Podcast On The Tombstone Federal Lands Access Case

Check out the opinion of the Indiana Supreme Court in Utility Center, Inc. v. City of Fort Wayne, No. 90S04-1208-PL-450 (Apr. 11, 2013. The issue is what the term “rehear … de novo” means in Indiana’s eminent domain code relating to condemnations by cities and towns, which provides for such review by trial courts on administrative appeal from a valuation assessment by a municipal works board. The city had the option to condemn the property either under that provision, or under the general eminent domain statute in which the landowner would be entitled to demand a jury.

The landowner objected to the board’s valuation, and demanded a jury trial. The trial court granted the city’s motion to strike the jury demand, concluding that “de novo” only required a limited review of the administrative record to insure that the valuation decision was made “in conformity with proper legal procedure.”

The…

Continue Reading Indiana S Ct: Meaning Of “De Novo” Rehearing In Eminent Domain Code Not Quite A “No Brainer”

Yesterday, we posted our thoughts on a recent article in Hawaii Business magazine about land use, environmental law, and the Hawaii Supreme Court.

In “‘Let ‘Em Eat Cake’ Comes to Hawaii, Professor Gideon Kanner has added his thought on the article. He comments on the article’s conclusion that “[i]f we don’t like the [environmental] laws anymore, we can elect officials to change them.” by writing:

Hawaii Business magazine have never heard about the principle that statutes have to be constitutional? Would they make the same argument in the case of overreaching criminal laws? Racial segregation laws? Laws impairing the exercise of the First Amendment?

…

Moreover, under the “reasoning” of these idiots, no law need be constitutional because if the legislature disregards a provision of the Bill of Rights, we can tell the complaining citizens to be better electors next time and to elect more constitutionally sensitive representatives.

Lord in heaven! Is there no limit to these guys’ stupidity? Evidently not.

Read his entire commentary here. By the way, before you are tempted to dismiss Professor Kanner as an outlander (yes, Justice Scalia really did call out-of-staters “outlanders” in a recent oral argument), his ties to Hawaii and his knowledge of our ways go way, way back.
Continue Reading Strong Letter To Follow…