2014

Here’s more on a post in May in which we suggested you should get your hands on a copy of Professor Gideon Kanner’s latest article, Detroit and the Decline of Urban America, 2013 Mich. St. L. Rev. 1547 (2014). He writes about the role of eminent domain as one of the six factors contributing to urban flight and depopulation of major cities such as Detroit. Unfortunately, we could only post a reference to the article, but not the article itself.

Now we can. Here it is. It is a quick and enlightening read.

Related articles
Why We Fight: An Interview With Gideon Kanner, “A Fierce Advocate for Just Compensation”
New Article Of Note: The Role Of Eminent Domain Abuse In Detroit’s Downfall
Use Eminent Domain To “Redevelop” A Sports Franchise, And Take It From An Undeserving Owner?
Professor Kanner On Justice Ginsburg’s Eminent Domain Illiteracy
Gideon’s Trumpet Continues to Sound

Continue Reading Kanner: Detroit and the Decline of Urban America

No, it’s not Pearl Harbor. But from some of the reactions we’re seeing, you might think the Imperial Japanese Navy was once again anchored off of our fair shores. 

But thankfully no, it’s only aerial advertising, one small airplane towing a sign. But the airplane’s sorties have been generating attention like you wouldn’t believe. 

Hawaii has always been protective of its scenery, with an out-and-out prohibition on billboards, and two federal courts concluding pretty definitively (in our view) that the City and County of Honolulu’s prohibition on airborne signs and advertising is not preempted by federal law, and does not violate Free Speech rights. See this Ninth Circuit decision (cert denied, by the way), and this earlier case, also from the Ninth. 

Not so fast, says one company, which seems intent on pushing back. According to this story (“State and Local Officials Up Ante Against Sky…

Continue Reading Hawaii Under Attack From The Air!

We finally got around to reading “What Lies Beneath,” an opinion piece from the New York Times that we’ve been saving in our to-read list since the spring, Linda Greenhouse’s musings on the U.S. Supreme Court’s 8-1 decision in Marvin M. Brandt Revocable Trust v. United States.

In that piece, Ms. Greenhouse notes that Brandt was one of those cases she pretty much didn’t care about (“I hadn’t read the briefs or the argument transcript, let alone attended the argument itself.”). In other words, it wasn’t about Citizens United, abortion, or religion, the usual things the reporters who cover the Supreme Court beat consider hot topics. No, this was one that — even after she read the opinion — “I had only a vague sense of what the case was about and none whatsoever of its significance, if any,” that it it concerned what happens when…

Continue Reading New York Times SCOTUS Reporter: Wow, Brandt Was About Rails-To-Trails And Property Rights!

There’s still time to register for one or more upcoming CLE programs sponsored by the ABA Section of State and Local Government Law:

I’ll be part of the “Hot Topics in Land Use” panel, speaking about recent developments in regulatory takings. These are replays of the in-person programs we put on at the recent Spring Meeting in Asheville, NC.

Register for all three programs and receive a 20% discount. Continue Reading Upcoming CLE Trifecta: Hot Topics In Land Use Law, Heirs Property, Urban Ag (July 15, 2014)

Here’s an interesting one from the Iowa Supreme Court, in which the issue is whether the federal Clean Air Act preempts a property owner’s state-law nuisance claim.

In Freeman v. Grain Processing Corp., No. 1309723 (June 13, 2014), the issue was whether property owners could assert trespass and nuisance claims under Iowa law against a nearby facility which in the process of converting corn into ethanol and corn syrup, releases what are alleged to be harmful chemicals into the air. The court undertook a detailed analysis, concluding that the CAA does not preempt common law trespass and nuisance claims.

Characterized by one of the amicus parties as “A Victory for Property Rights,” the opinion recounts the history of the CAA, and public and private nuisance claims as a form of private environmental law. There’s a lot of detailed rationale set out in the opinion, but the short …

Continue Reading Iowa: Common Law Nuisance Claim Not Preempted By Clean Air Act (Even In The “Age Of Statutes”)

Here is the recording of last month’s Hawaii Supreme Court oral arguments in Bridge Aina Lea Dev., LLC v. Bridge Aina Lea, No. CAAP-13-0000091.

This is the state court half of the case. The federal court half is pending in the Ninth Circuit, which, after oral arguments earlier in June, decided to hold off on deciding the appeal until after the Hawaii Supreme Court issued its decision in this case. 

Both cases started off in state court in the Third Circuit (Big Island), one an original jurisdiction civil rights lawsuit, the other an administrative appeal from a decision of the State Land Use Commission. The essence of the plaintiff’s allegations is that the LUC wrongfully amended the land use boundaries from urban to agriculture. Many years earlier, the LUC had amended the boundary to urban on the condition that the owner provide a certain number of affordable…

Continue Reading HAWSCT Oral Arguments In In Bridge Aina Lea: LUC Reclassifications And Orders To Show Cause

We don’t need to tell all you non-New Yorkers that the New York Court of Appeals is the state’s highest appeals court, do we? We watched enough Law and Order to know that what most everywhere else calls a “supreme court” is the “Court of Appeals” in the Empire State.

With that out of the way, we get to today’s case, a 5-2 decision by the New York Court of Appeals in two cases where “fracking” is the issue. Or, more accurately, two municipalities which used their zoning power to ban the practice. The court allowed them to do so, holding that New York’s Oil, Gas and Solution Mining Law, which “supersede[s] all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries,” does not preempt the municipalities’ home rule zoning power. 

Wait a minute, you say, isn’t a ban on fracking a…

Continue Reading New York: Municipal Ban On Fracking Is Zoning, Is Not Preempted By State Law

Like a visiting relative who won’t go home, the idea to seize underwater-but-performing mortgages is still hanging on. The llatest chapter is brought to us by way of our New York colleague Mike Rikon, who writes:

At a press conference on the steps of City Hall, City Council members and housing advocacy groups called on the Mayor to help homeowners who are at risk of foreclosure. Such help would come in the form of using eminent domain to “buy back mortgages where homeowners owe more than their houses are worth.”

According to a CBS report on June 25, 2014, “under the proposed plan, City government would purchase the mortgages from banks and refinance them to match the home’s value to prevent foreclosure.” 

Mike notes that nearly two years ago (and several times since), we suggested that this plan was not clearly legal, and even if it were, was not…

Continue Reading Farpotshket Alert: Plan To Take Mortgages By Eminent Domain Is Back

Update: Here’s a story on the case from the Sacramento Bee (“State Supreme Court to rule in Delta property-rights case“). See also “Property Reserve on Hold: Supreme Court to Review Eminent Domain Right of Entry Statutes” from Brad Kuhn at the California Eminent Domain Law Report.

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Thanks to our New York colleague Mike Rikon at Bulldozers at Your Doorstep, we’ve come to learn that on June 25, 20154, the California Supreme Court agreed to review a very important eminent domain case, Property Reserve, Inc. v. Superior Court, 224 Cal. App. 4th 828 (2014).

That’s the case in which the Court of Appeal held that California’s entry statute (Cal. Civ. Pro. Code § 1245.010 et seq.), was unconstitutional because it allowed an uncompensated taking. We summarized the Court of Appeal opinion here.

California’s entry statute is much like similar provisions in other…

Continue Reading Cal Supreme Court To Review Eminent Domain Entry Statutes – A Free Pass, Or A Taking?