January 2014

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Next Thursday, February 6, 2014, we’ll be in Chicago to moderate an American Bar Association discussion/debate on a topic that’s not our usual takings-eminent domain-land use stuff, but is still one of the hotter topics around. “They’ll Take My Big Gulp From My Cold Dead Hands” is an hour-and-a-half with three experts in “Public Health, the Police Power, and the Nanny State,” to quote our subtitle. (Yes, we realize that New York City’s ban actually exempted Big Gulps® but hey, it’s a catchy title.)

Joining me for the discussion:

  • Walter Olson, Senior Fellow at the Cato Institute’s Center for Constitutional Studies. While his list of accomplishments is long, we lawyers perhaps love him best for his “Overlawyered” blog. 
  • Sarah Conly, Professor of Philosophy at Bowdoin College. Author of “Against Autonomy:  Justifying Coercive Paternalism,” forthcoming from Cambridge University Press.
  • Alderman George

…
Continue Reading Upcoming Program: “They’ll Take My Big Gulp From My Cold, Dead Hands – Public Health, the Police Power, and the Nanny State”

We were all set to write up the latest case from the Federal Circuit, Banks v. United States, No. 12-5067 (Jan. 24, 2014), when our colleagues at Pacific Legal Foundation beat us to it with this post, “Federal Circuit revives Lake Michigan takings case.”

The Federal Circuit agreed, holding that the property owners’ awareness of that some erosion was occurring before 1952 was not sufficient for their takings claims to accrue. Indeed, the Court held that it was “unreasonable” for the trial court to “assume that a property owner should have been able to discern the difference between the naturally occurring erosion and that caused by the jetties.” The Court sent the Banks case back for a determination on its merits.

Read it if statutes of limitations are your thing. 

Banks v. United States, No. 12-5067 (Fed. Cir. Jan. 24, 2014)

Continue Reading Fed Cir: Takings Claim Did Not Accrue Until Property Owner Had Reason To Notice Permanent Damage

We often jokingly suggest that in eminent domain, “it’s good to be the King!” quoting that eminent eminent domain scholar Mel Brooks. We think this catchphrase aptly describes the “most awesome grant of power,” City of Oakland v. Oakland Raiders, 220 Cal. Rptr. 153, 155 (Cal. App. 1985), under which the condemnor has a very nearly unfettered ability to take property.

But in recent decision from the Missouri Court of Appeals it was good to be the landowner — the owner of a Burger King restaurant — because it had the good sense to hire Robert Denlow, our Owners’ Counsel colleague (and occasional Sunday golf partner) (that’s Bob in the above video, a 2013 interview). In City of North Kansas City v. K.C. Beaton Holding Co., No. WD76068 (Jan. 14, 2014), the Missouri Court of Appeals, Western District, held that the city, a …

Continue Reading Sometimes, It’s Good To Be The (Burger) King: General Power Of Eminent Domain Does Not Include Blight Elimination

Today, the Hawaii Supreme Court issued an option in Diamond v. Dobbin, No. SCWC-30573 (Jan. 27, 2014), a case about shoreline certifications that we’ve been following.

It’s a beach case, obviously, but not about ownership. Shoreline certifications approved by the State Department of Land and Natural Resources are used as the baseline from which to measure building setbacks on littoral parcels, and do not involve the boundary between public and private property on beaches.

The DLNR certified the shoreline on a Kauai parcel, and two nearby residents who claimed the shoreline was further mauka (landward) administratively appealed to the Board of Land and Natural Resources. The Board rejected the appeal and approved the certification, and the two neighbors appealed to the circuit court under HAPA. The circuit court concluded the BLNR’s findings of fact were wrong, and vacated the certification.

The property owner who sought the certification appealed to the…

Continue Reading HAWSCT: State Agency Must Consider “Historical Evidence” Of “The Upper Reaches Of The Wash Of The Waves” When Certifying Shorelines

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This: apropos of pretty much nothing that are the usual subjects of this blog. But felt compelled to share anyway.

Guy without a harness, three stories up, shaping and nailing flashing to a roof in New Orleans. Standing on a palette. On the end of the arm of a crane. Being operated by a guy talking on his cell phone.  Continue Reading Safety Last?

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One of the perks of attending the annual ALI-CLE Eminent Domain and Land Valuation conference (this year in New Orleans) is that in addition to 2 1/2 days of high-level CLE programming involving our favorite topic, you get to meet colleagues from across the nation (and internationally – expropriation lawyers from Canada were also with us, and gave us an update on the Antrim Truck decision). 

You also find out things that, despite the seemingly infinite resource that is the internet, you didn’t know before. And that’s how we came to find out about a new law blog, covering Wisconsin issues in eminent domain and related topics, “The Preeminent Domain” (http://thepreeminentdomain.com/). As an aside, we love that URL. 

Steve Streck, a partner at Axley Brynelson leads the blogging team, and thus far, their posts look pretty interesting (underwater mortgages, rails-to-trails, and, of course, Wisconsin-centric eminent domain…

Continue Reading New Eminent Domain (And Related) Law Blog

Coy Koontz, Jr., the prevailing property owner in Koontz v. St. Johns Water Management District, No. 11-1147 (June 25, 2013) joined our Pacific Legal Foundation colleague Jim Burling for an interview on Fox and Friends.

Kudos to Jim and Mr. Koontz for getting down to the studio in the wee hours of the morning — we shared dinner last night (Mr. Koontz has joined us to accept the 2014 Crystal Eagle award from Owners’ Counsel of America on Saturday), and even after all that a New Orleans meal involves, they were able to drag themselves to the studio and look remarkably fresh. Good work, guys.Continue Reading Coy Koontz, Prevailing Property Owner In SCOTUS Victory, Interviewed

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Between sessions at the annual ALI-CLE Eminent Domain and Land Valuation conference in New Orleans, planning Chair Joe Waldo took to the mic to say a few words about his co-Chair, Leslie Fields. Yesterday, Leslie announced that after 10 years, she’s retiring as Chair of the conference and that she is also retiring from the practice of law later this year. 

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Joe expressed his thanks for Leslie’s years of leading this conference and her many more years of representing property owners across Colorado in eminent domain and related cases. In addition to planning this conference, Leslie’s represented property owners in nearly every county in Colorado, won significant cases in the Colorado Supreme Court and federal courts, and literally written the book on the practice of eminent domain in in Colorado.

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Joe, Leslie, and Andrew Brigham and Jack Sperber (co-Chairs of the Eminent Domain 101 program)

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 Leslie reminded us that…

Continue Reading Thank You, Leslie Fields

Here are the cert briefs in Kellberg v. Yuen, No. SCWC-12-0000266 (Haw. Jan. 22, 2014), the case in which the Hawaii Supreme Court held that there is only one “final decision” that a challenger must administratively appeal when objecting, and that due process requires the agency to give a challenger notice of the administrative process. 

We represent the prevailing Petitioner in the case, and promised to post the cert briefs, which, along with the briefs filed in the Intermediate Court of Appeals, are all of the appellate briefs filed in the case (the court did not request additional briefing after accepting cert). So here they are:

We’re still at the ALI-CLE Eminent Domain conference, so have not had a chance to write up our thoughts on the opinion, so until we do, here’s…

Continue Reading Cert Briefs In Admin Due Process Case

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This morning, I joined my Owners’ Counsel colleagues Leslie Fields and Joe Waldo (the programming co-chairs), and more than 100 fellow eminent domain experts in New Orleans under the auspices of ALI-CLE at our annual gathering for the start of 2 1/2 days of legal education. 

Joe and Leslie asked me to join Professor James Ely to speak about “The Full and Perfect Equivalent for Just Compensation: The Historical Context and Practice.” Professor Ely led us off with a crash history of just compensation, starting with the Magna Carta and where we’ve been, and then handing it off to me for the “where we are and where we may be going” segment.

Just to prove to you all that while in New Orleans, I really did show up and not get distracted by the many (many) distractions that this city can offer, the above is a…

Continue Reading A Dispatch From The ALI-CLE Eminent Domain Conference (With Links)