2014

Ducks

Here’s what we’re reading on this blustery Friday:

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Continue Reading Friday Links: Duck Gets Eminent Domain Power, A Small Piece Of New York City … And More

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An update from this morning for those of you wondering how things are going out here in the Hawaiian Standard Time zone with one, two, or even three hurricanes possibly bearing down on us. Here’s the view out of our office window, circa 1715 hours (that’s 5:15pm HST), August 7, 2014.  

Pretty much everything is closed down tomorrow: government offices, the state and federal courts, and private businesses, including our firm. We squeaked in an oral argument this morning in the Hawaii Supreme Court, but as of now, most folks are leaving the downtown area and heading home to hunker down. 

I’ve ridden out at least one prior Hawaii hurricane, and for whatever it’s worth, this one doesn’t have that pre-event “bad feeling” that accompanied that one, so my sense is that the next few days won’t be so bad. I hope I am right, but we’re all…

Continue Reading Still Girding – Downtown Honolulu Becoming A Ghost Town As Hurricane Bears Down

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A few have asked how we’re doing out here, with one, maybe two hurricanes apparently coming our way. Thank you for your concern.

We’re “girding” according to this story, but here is the view out of our office window, downtown Honolulu, looking east towards Waikiki and Diamond Head, circa 0630 hours, August 7, 2014. Things may change, but for now, all clear. 

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Continue Reading We’re Girding, But For Now, All Clear

Given the title of this blog and our usual inclinations in takings cases, you would be forgiven for assuming that we’d have a negative review of the Second Circuit’s opinion in 1256 Hurtel Avenue Associates, LLC v. Bulan, No. 12-1603-bk (Aug. 1, 2014), which held that a legislative increase in the size of the homestead exemption — which had the effect of wiping out an existing judgment lien — was not a taking. But before you jump to that conclusion, read on, since we have a couple of nice things to say about the opinion.  

In 2005, the New York legislature increased the homestead exemption — which exempts a certain amount from being used to satisfy money judgments — from $10,000 to $50,000. Five years later, the legislature raised it again to $75,000. Good for homeowners, not so good for those to whom homeowners owe money. But these…

Continue Reading 2d Cir: New York’s Wipeout Of Judgment Lien Is “Legislative Tinkering,” Not A Lucas Or Penn Central Taking

The Texas Supreme Court has agreed to review Texas v. Clear Channel Outdoor, Inc., a decision in which the Court of Appeals held that the owner of billboards was entitled to compensation when the land on which the billboards were located was condemned.  

Texas needed to widen the freeway, and condemned the land on which the billboards were located. It refused to pay just compensation on the grounds that the billboards were personal property and not “realty,” and thus the owner could simply move them. The State issued a removal order. In response, the owner filed an inverse condemnation action to recover just compensation for the billboard takings.

The court concluded the billboards are not moveable property, but are fixed to the ground, and that the state should have condemned and paid for them. It also overruled the state’s objection to the method of determining just compensation, which …

Continue Reading Texas Supreme Court To Consider: Are Billboards Movable Property?

Check this out, an opinion from the Appellate Division of the New York Supreme Court in a tax assessment case, Jacobowitz v. Bd of Assessors, Town of Cornwall, No. D39807 (July 30, 2014. The court held that the Fourth Amendment’s prohibition on warrantless searches and seizures means that a property owner did not have to let the Town’s appraiser into her home to “conduct an interior appraisal inspection” related to her property tax assessment. Slip op. at 1.

It’s a quick read, so we won’t spell it all out in detail, just focus on a couple of the best points. The court held that it is the government’s burden to show entitlement to entry of a home, and not the property owner’s burden to show why it should not. And the property owner’s challenge to the tax assessment did not waive her rights:

Contrary to the Town respondents’ contention…

Continue Reading NY App Div: Town Needs A Warrant For Inspection Related To Property Valuation

Yes, it’s our old favorite, the Australian eminent domain comedy, The Castle (our review herefirst Law Film Festival, and were in good company: Ebert also loved the movie).

The most recent edition of the ABA Journal, features “12 pivotal movie scenes with lessons for lawyers.” The lesson we learn from the “one of the most painfully awkward courtroom scenes put on film,” where inept solicitor Dennis Denuto tries to argue his way around the Australian Constitution’s version of the Takings Clause at a public use hearing: 

There are times when lawyers can reach beyond their limited experience, rise to the occasion and snatch victory for the little guy. There are also times when you know yourself to be outmatched. Potential clients may have complete faith in you, but they probably do not understand the law and the challenges they may face. If you know that…

Continue Reading ABA Journal Zeros In On Our Favorite Courtroom Scene In A Legal Film

Today, the Hawaii Supreme Court issued a unanimous opinion in Oahu Publications, Inc. v. Abercrombie, No. SCWC-13-0000127 (July 31, 2014).

We represent the prevailing petitioner in the case, so won’t be adding much of anything to the court’s words.But if you are interested in government records laws and the interplay between attorneys’ fee recovery and the Rules of Appellate Procedure, read on.

The court writes:

We consider whether the Intermediate Court of Appeals (ICA) erred in denying Oahu Publications’ request for appellate attorneys’ fees and costs. In brief summary, Oahu Publications filed the underlying suit against The Honorable Neil Abercrombie, in his official capacity as Governor of the State of Hawaii, under the Uniform Information Practices Act (UIPA), Hawaii Revised Statutes (HRS) Chapter 92F, seeking to obtain the list of nominees considered for a vacancy on the Hawaii Supreme Court. After the parties filed cross-motions for summary judgment, the…

Continue Reading HAWSCT Clarifies Procedure For Requesting Mandatory Attorneys Fees Under Open Records Laws

Here’s a new cert petition, filed yesterday, that poses two interesting issues, the first of federalism, the other of exactions.

This is a rails-to-trails case in which the federal government asserts that the easements imposed on private property for a public park in New York City after the railway was abandoned did not result in a taking because the owners signed agreements with the city giving up their rights in exchange for development rights on other parcels. Included within this agreement — to which the federal government was not a party — was a covenant not to sue the city or the federal government. When the owners sought compensation in the Court of Federal Claims, the CFC dismissed because the federal government was the third-party beneficiary of the city-owner agreement. 

This is a question of New York law, and according to the petition, no New York court has ever…

Continue Reading New Cert Petition: In Rails-To-Trails Case, Fed Circuit Should Have Punted State Law Contracts Question To State Court

A couple of years ago, we posted the complaint (actually, a petition for mandate) alleging a big regulatory takings claim against the County of San Luis Obispo based on the County’s denial of a permit to drill for oil. A very big claim. $6.24 billion big. See “Wow, That’s A Lot of Just Compensation.”

We always wondered what happened to that lawsuit. Now, thanks to our colleagues at the California Eminent Domain Report, we know. 

In “How Untimely Service Can Be Deadly To Your Takings Claim,” Ben Rubin reports that in an unpublished decision, the California Court of Appeal affirmed the dismissal of the complaint for failure to timely serve it on the County. The plaintiffs filed the complaint on time, they just didn’t serve it. Read Mr. Rubin’s write up for the details, but here are the highlights:

  • The County’s denial of the

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Continue Reading Cal App: OK For County To Mislead By Omission In Due Process Notice