2014

Here’s a follow up to last week’s story on the “sit-lie” and “don’t use the bathroom in public” ordinances now being considered by the Honolulu City Council (see “As Judge Kozinski Said, It’s A Sidewalk, Not A Sideseat Or A Sidebed“). 

Today’s Star-Advertiser reports in “Sit-lie ban sought for all Oahu” that the scope of the ban may be expanded from Waikiki, and that the prohibition on urinating and defecating in public in Waikiki is also being proposed to include the entire City and County. In other words, island-wide. The sit-lie ban is also being considered as an all-day thing, not just the limited hours in the initial bill.

While limiting the hours and geographic scope of the sit-lie ban would seem to tacitly encourage this behavior in the off-hours and in other parts of town, the Seattle ordinance on which these things are…

Continue Reading Prohibiting Sitting Or Laying Down On Oahu’s Sidewalks 24/7 Makes Law More Susceptible To Challenge

Check this out: Vermont lawprof John Echeverria has launched a blog about “Takings Litigation.” Which, given the predilections of the author (organizer of the anti-takings conference, and recently presented with the Koontz Catatonia Award), probably should be called “Takings Defense” or the “No Takings Blog,” but who are we to say? 

Samples of recent posts:

  • “Just when you thought the Koontz litigation couldn’t get any worse (see my article, Koontz: the Very Worst Takings Decision Ever?), the Florida Court of Appeals has issued a decision in the Koontz case on remand.”
  • “Importantly, the decision [Sherman v. Town of Chester] does not cast doubt on the general rule that when a litigant initially files a takings claim in federal court, the government defendant can raise Williamson County and insist that the takings claim be litigated in state court.”
  • “One thing seems clear about this case [

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Continue Reading New Takings Blog – “Takings Litigation”

The Utah DOT took all 15 acres of Carlson’s property even though it needed only 1.2 acres for the project. Why? Because it wanted to “avoid[] litigation regarding Carlson’s severance damages.” Well, that’s mighty good of them to want to keep it simple.

Carlson, however, objected on two grounds. First, he asserted that a Utah statute (Utah Code § 72-5-113) did not authorize excess takings. Second, he asserted that the DOT did not have a public use in taking the excess. The trial court rejected his statutory argument, and did not address his constitutional claim.

In Utah Dep’t of Transportation v. Carlson, No. 20120414 (June 24, 2014), the Utah Supreme Court affirmed the trial court’s rejection of the statutory claim, but concluded that Carlson’s constitutional challenge was a “serious one.”

Although we agree with UDOT’s statutory position and thus affirm that aspect of the district court’s decision, we…

Continue Reading Utah: “Serious” Question Whether Excess Taking Is For Public Use

Earlier, we posted the recording of the Ninth Circuit’s recent oral arguments in Bridge Aina Lea, LLC v. Chock, Nos. 12-15971, 12-16076, a case in which the court is considering whether State of Hawaii Land Use Commissioners have immunity from civil rights lawsuits, among other issues. The essence of the plaintiff’s allegations is that the State Land Use Commission wrongfully amended the land use boundaries from urban to agriculture. The State argued the District Court should have found the commissioners immune from suit, while the plaintiff cross-appealed, asserting the court, after abstaining, should have remanded the case to the state court where it was originally filed.

Two days after arguments were submitted, the Ninth Circuit panel unsubmitted the case and said that it would hold off on a decision pending a ruling from the Hawaii Supreme Court in the parallel state litigation (an appeal that will be argued later this…

Continue Reading Bridge Aina Lea 9th Cir Oral Argument Report: Hawaii Land Use Commission’s Immunity For Reclassification

Little-pink-house

Little Pink House, Jeff Benedict’s book about the Kelo v. City of New London case, looks like it is going to become a feature film. 

Earlier, we heard it was going to be a TV (Lifetime) movie with Brooke Shields in the protagonist role, but it appears that they’re going for your local multiplex or arthouse instead, according to an op-ed in USA Today with the interesting title of “Culture can help tame eminent domain abuse” (“We are producing a feature film based on Kelo’s historic saga, and we hope to achieve some of the impact garnered by Erin Brockovich, another underdog film about a real-life working-class woman.”).

The authors, producers of the film, suggest that if only the public knew about Susette Kelo’s story, attitudes would shift about eminent domain abuse:

Erin Brockovich showed how culture can elevate otherwise obscure issues to…

Continue Reading Kelo On The Silver Screen: “Culture can help tame eminent domain abuse”

Lgo

ALI-CLE, the good folks who put on the annual programs on Eminent Domain and Land Valuation, and Condemnation 101: How to Prepare and Present an Eminent Domain Case, have announced the dates and venue for the 2015 conferences:

Thursday – Saturday, February 5-7, 2015 

Hotel Nikko, in San Francisco.

Those of you who have attended or taught at these conferences in the past know they are the premier programs on this topic, and feature exciting presentations and excellent faculty.

I’ve been honored to be asked to serve as the Planning Co-chair of the 32d annual Eminent Domain and Land Valuation Litigation program, stepping into the able shoes of Leslie Fields, who retired last year. Joe Waldo is continuing as Planning Co-Chair. Joe and I are currently putting together the agenda and faculty for the program, and we will have more on that soon. Andrew…

Continue Reading Mark Your Calendars: 2015 ALI-CLE Eminent Domain and Land Valuation, and Condemnation 101 – February 5-7, 2015, San Francisco

Here are two recent reports on the progress of the Honolulu rail project that should be read in-tandem:

Both stories are partially behind a paywall, but here’s the relevant bits. The first story reports that HART, the city agency created to build and operate the rail is in “another race against time,” this time to acquire the private property it needs to build the rail’s easternmost stretch through Honolulu’s urban core (the tough part, in other words). According to HART, acquisition of access is “our single highest priority.” Which sounds like a big bite: HART Director “Grabauskas and HART staff say they’re aiming to do some 18 months of work negotiating those properties in only six months’ time. They intend to purchase approximately…

Continue Reading Honolulu Rail And The Use Of Eminent Domain

A federal court authorized court-appointed counsel in a criminal prosecution to retain Marcum for forensic accounting and litigation support services. There’s a federal statute which allows for payment for these services, and if the cost exceeds $2,400, the chief judge of the regional circuit must approve. The work Marcum performed went over that amount. By a lot. As in hundreds of thousands. The submitted budget was $4.5 million. Marcum didn’t get the Fifth Circuit’s chief judge’s sign off.

When Marcum received payment of some (but not all) of its invoices from the court, it sued in the Court of Federal Claims for a taking under the Tucker Act for the difference. 

No deal, held the Federal Circuit. In Marcum LLP v. United States, No. 14-5001 (June 13, 2014), the court held that the CFC Tucker Act lawsuit was a collateral attack on the Fifth Circuit’s determination of the fees …

Continue Reading Federal Circuit: No Tucker Act Takings Claim For Court-Appointed Counsel Fees

Remember that decision by a U.S. District Court in Tampa, Florida last year that we crowed about? The court held that a county’s “Right of Way Preservation Ordinance” which allows it to land bank for future road corridors by means of an exaction is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation.” 

A property owner brought a substantive due process claim, and the court first rejected the county’s argument that the substantive due process claim was not ripe under Williamson County because Hillcrest had not pursued a waiver or variance. It also concluded the Right of Way Preservation Ordinance violated the Takings Clause because it shifts the burden to disprove rough proportionality to the property owner and empowers the county to obtain land in excess of what it would otherwise get in the absence of the ordinance. The court enjoined enforcement of the…

Continue Reading 11th Circuit: Facial Challenge To Ordinance Must Be Brought When Ordinance Adopted

Here’s what we’re reading today:

  • Eminent Domain, Ultra Vires, and Adverse Possession Walk Into a Bar… – from SCOV Law, a blog about the decisions of the Vermont Supreme Court: “Get ready to dust off your nineteenth-century-property-law hats, folks, cause this case is chock-full of neglected old cases about rail beds, public trails, adverse possession, eminent domain, and railroad corporations venturing outside the realm of their existential purpose.”
  • Writ to Watch: Ruggles v. Yagong – from Rebecca Copeland at Record on Appeal, about a case which the Hawaii Supreme Court recently agreed to review. The issue is whether an ordinance adopted by the voters of the County of Hawaii (the Big Island) is preempted by state law. The initiative ordinance made it the official policy of the County to make enforcement of personal use of marijuana the lowest priority for the police and prosecutors. Oh my. The trial court

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Continue Reading Wednesday’s Reading List: Vermont Eminent Domain, The Big Island’s Weed Ordinance, And Quo Warranto