2014

When we eminent domain lawyers deal with claims that the government or some other entity is “stealing” someone’s property, we recognize that such claims are somewhat … metaphorical.

But here’s a situation where it appears that some poor fellow actually had his house, like, stolen. As in hijacked, ripped off, five-finger discounted.

The Daily Mail reports that one Andy Pascali, a resident of the Romanian port city of Braila, called the police to report that his house had been stolen:

At first they thought it was a joke, but when they turned up at the nearby village of Baldovinesti they found not only that there was no property where there should have been a three-bedroom building, but that a field of ready-to-harvest corn had been planted in its place.

A shocked Mr Pascali, who posted the image of the cornfield on his Facebook page, said: ‘I think this could

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Continue Reading “My entire house has been stolen” (And No, It Wasn’t By Eminent Domain)

Civil Beat has a piece by Ian Lind (“Hawaii Monitor: Why Has Florida Company Picked a Fight Over Aerial Advertising?“) that has more on that story we first posted about here (“Hawaii Under Attack From The Air!“). He writes:

Local attorney and blogger, Robert Thomas (InverseCondemnation.com), has commented that the prior court cases have “pretty definitively” determined that Honolulu’s ban on airborne advertising is neither preempted by federal law, nor a violation of Free Speech rights. I certainly hope he’s right.

In our original post, we linked to the two Ninth Circuit decisions Ian mentions.

All we have so far is questions. Is there room for the aerial bannerist to navigate over Honolulu? Does the ban survive strict scrutiny (which is usually fatal scrutiny) as the Ninth Circuit twice concluded? Have Honolulu residents really called 911 to report the plane as the mayor…

Continue Reading More On That Pesky Banner-Towing Airplane

We usually don’t pay a whole lot of attention to unpublished opinions. Not that they are not interesting mind you, but if the court itself, for whatever reason doesn’t believe the case is worthy of publication, then who are we to say otherwise? But occasionally, we read one that has something worth sharing. Like this case, for example.

In Dagres v. County of Hawaii Planning Dep’t, No. CAAP-11- 0000071 (June 30, 2014), the Hawaii Intermediate Court of Appeals gave us one of those blogworthy tidbits, a short (one page) discussion of the appellant’s judicial takings claim. We don’t see many of those, so we had to follow up. 

The case involved three buildings near the shoreline on the Big Island. The owner wanted to fix them up, and the Planning Department concluded that two of the buildings were exempt from the requirement to obtain a Special Management Area use…

Continue Reading A Hint Of Judicial Takings From The HAWICA

When the one side or the other in the public debate complains about “judicial activism,” they’re usually talking about judges legislating from the bench — finding new rights, reading words into statutes that aren’t there, and the like. But that species of judicial activism doesn’t bother us all that much since we rarely see it, and even when we do, we understand that when accomplished incrementally, it is an integral and generally accepted feature of the common law process. Professor Steven Eagle has compared the common law’s gradual evolution to a big ship making a slow turn, and we think that’s an evocative and apt description. Judges in such a system sometimes do things like that, so that kind of judicial activism doesn’t truly get under our skin. 

No, the “judicial activsm” that bothers us is what the Second Circuit did in the the latest chapter in an issue we’ve been following…

Continue Reading Circuit Split Alert: Second Circuit Says Williamson County Ripeness Applies To Due Process

Here’s a law review article that you might find worthy. In Property as the Law of Democracy (pdf here), Harvard lawprof Joseph Singer writes that “[p]roperty is not merely the law of things. Property is the law of democracy.” Heady stuff, for sure. 

As the abstract notes:

In both his article Property as the Law of Things and his prior work, Professor Henry Smith has revitalized property law theory by emphasizing the architectural role that property plays in private law and the ways in which modular property rights reduce information costs and promote both property use and transfer. I applaud Smith’s insistence that we focus on the systemic nature of property rights and the benefits of bundled entitlements. At the same time, it is important to understand the limitations of Smith’s analysis.

Property law goes beyond managing the complexity of human interaction. Property not only presents a coordination…

Continue Reading New Article: Joseph W. Singer, Property as the Law of Democracy

By statute, California property owners have four years to . Proposition 13 is the ____.

In Olive Land Industrial Park, LLC v. County of San Diego, No. D063337 (July 18, 2014), the Court of Appeal held that 

A nonmandatory interpretation of the time limitation also promotes the
constitutionally-mandated just compensation principles governing eminent domain
proceedings, which—by virtue of governmental action and through no choice of the
property owner—create the need for the property owner to purchase replacement
property. Absent application of Article XIIIA, the property owner remains
uncompensated in the event the property taxes on the replacement property are higher
than on the property taken by the government. Construing the time limitation in section
68 as nonmandatory advances the intent of the voters to incorporate increased property
taxes within the just compensation formula in eminent domain transactions.

Slip op. at 17.

Accordingly, we interpret section 68 to implicitly allow…

Continue Reading Cal App: It’s Not An Owner’s Fault It Needs Replacement Property After Condemnation – Request For Prop 13 Base-Year Value May Be Made After Four Year Time Deadline

Here’s an interesting one from the Georgia Supreme Court. In Dillard Land Investments, LLC v. Fulton County, No. S13G1582 (July 11, 2014), the court held that a condemning agency could not voluntarily dismiss an eminent domain action, after a special master has entered a just compensation award but before the agency has paid the award into the court.

Georgia eminent domain can take one of three tracks. There’s the “assessors method,” the quick take, and the “special master method.” The Dillard case involved the latter, under which the court appoints a master to quickly hold a hearing, after which the master determines the just compensation owed the property owners and files her award with the court. Anyone dissatisfied with the award may appeal for a de novo jury trial. If no appeal is filed, the court enters a judgment. The issue in the case was whether the condemnor could…

Continue Reading Georgia: No “Condemnor’s Remorse” After Special Master Determines Just Comp

To those of you who joined us at the ABA’s Land Use, Planning, and Development Forum, thank you. Here are links to some of the topics I mentioned: 

Those of you who couldn’t make it can get the recording on CD or mp3 here in a couple of weeks, once it is produced.  

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Continue Reading Links From Today’s Land Use, Planning, And Development Forum

There’s still time to register and attend the upcoming seminar,”Hawaii’s Shoreline and Coastal Law and Regulation.” It’s scheduled for Friday, July 18, 2014, in downtown Honolulu at the YWCA. Here’s the description:

This program will cover recent Hawaii case law, including the recent Hawaii Supreme Court decision regarding identifying the certified shoreline. Now, more than ever, with the realization that we need to plan for the impacts caused by our changing climate, existing regulations and policies will need to change.

Join Program Chair Jesse K. Souki, First Deputy of the State of Hawaii’s Department of Land and Natural Resources. He leads an outstanding faculty for these topics:

  • Natural and Anthropogenic Shoreline Change in Hawaii and Field Methods for Locating the Certified Shoreline
  • Land Use Laws Affecting Coastal Development in Hawaii
  • Recent Hawaii Case Law
  • The Changing Face of Public Policy: Legislative Issues and Dilemmas
  • Understanding the Regulatory

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Continue Reading Upcoming CLE: Hawaii’s Shoreline and Coastal Law and Regulation

Here’s what caught our attention today:

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Continue Reading Friday Round-Up: Eminent Domain, Cal Food Fight Ends (Maybe), Midwest Flooding