2014

We offer this one to you without comment, since we haven’t had a chance to read anything more than the abstract. Sounds intriguing, no? 

This Article proposes a paradigm shift in takings law, namely “inclusionary eminent domain.” This new normative concept provides a framework that molds eminent domain takings and economic redevelopment into an inclusionary land assembly model equipped with multiple tools to help guide municipalities, private developers and communities construct or preserve affordable housing developments. The tools to achieve this include Community Benefit Agreements (“CBAs”), Land Assembly Districts (“LADs”), Community Development Corporations (“CDCs”), Land Banks (“LABs”), Community Land Trusts (“CLTs”) and Neighborhood Improvement Districts (“NIDs”). The origin of the concept derives from the zoning law context, where exclusionary zoning in the suburbs excluded affordable housing for the poor. Courts intervened, applying exclusionary zoning doctrines, which led to the enactment of inclusionary zoning programs to achieve a fair share …

Continue Reading New Article: “Inclusionary Eminent Domain,” A “Paradigm Shift In Takings Law”

Those of us who have been in the courtroom when the U.S. Supreme Court has conducted its sessions over the past decades will certainly recall the fairly tall guy in the fancy suit guiding the lawyers, press, and audience members where to sit, what to do, and the like. That was the Clerk of the Court, William Suter, who recently retired from the job after a number of years doing it.

He’s now a visiting fellow at the Hoover Institution, and has authored this short piece, “Executive Power on Steroids.” where he posits that “[i]n four recent Supreme Court cases, the Obama administration takes a crabbed view of individual rights.” Two of the four cases Gen. Suter writes about (see, he’s also a retired U.S. Army Major General) are decisions with which we are familiar, Sackett and Arkansas Game and Fish:

What do these cases have in common?

Continue Reading Former Clerk Of The Supreme Court: Govt “Bullying” And “Strong-Arming” Property Owners

Here’s an article worth reading, co-authored by our colleague Edward Thomas (no relation, although we often kid that Ed is our brother-in-the-law), President of the Natural Hazard Mitigation Association, and a fellow who is concerned both with anticipating natural hazards such as sea level rise, hurricanes, and the like, as well as property rights. 

Thanks to permission from the Environmental Law Institute, which has has graciously allowed us to reproduce Ed’s latest from the National Wetlands Newsletter, we’re able to bring you “Turning Koontz Into an Opportunity for More Resilient Communities,” which posits that the sky is not falling because of the Supreme Court’s decision in that case: 

Many did not see the positive side of Koontz when the decision was released. Almost immediately, many commentators viewed the case as a victory for property owners and a defeat for government regulation. Many alarmist articles were written…

Continue Reading New Article Of Note: Turning Koontz Into an Opportunity for More Resilient Communities

The case that seemingly wouldn’t end — Coy Koontz, Jr.’s continuation of his late father’s case against the St. Johns River Water Management District over the WMD’s demand that they “pay to play” — has ended with its eighth appellate decision (including the now-famous visit to the U.S. Supreme Court), with another win for Koontz.

In St. Johns River Water Management District v. Koontz, No. 5D06-01116 (Apr. 30, 2014), the Florida District Court of Appeals made short work of the WMD’s argument that there were some loose threads left over from the prior decisions. The opinion doesn’t say much about the substantive law, except to say “we said this all before, and we haven’t changed our minds.” 

Because our decision in Koontz IV is entirely consistent with the decision of the United States Supreme Court, we adopt and reaffirm Koontz IV in its entirety and affirm the judgment below. We…

Continue Reading Fla App In Koontz VIII: We Were Right Before, Koontz Wins Again

[Note: we were all set to be the “firstest with the mostest” on these issues, but, as is often the case, Professor Kanner beat us to the punch (“The Clippers and Eminent Domain – It Was Only a Matter of Time“).]

What we’re talking about, of course, is the recent (and ongoing) controversy about the racist statements (allegedly) made by Donald Sterling, the owner of the Los Angeles Clippers professional basketball team, and the reactions, which include “Eminent Domain: The Real Solution to Scumbag Sports Owners.” In that piece, someone named Harvey Wasserman opines that the owners of the Clippers — and the Washington, D.C., professional football franchise — do not deserve to own their respective teams: 

Why do we allow our precious sports clubs to be the playthings of a bunch of wealthy degenerates?

Why aren’t the football, baseball, basketball, hockey and other major…

Continue Reading Use Eminent Domain To “Redevelop” A Sports Franchise, And Take It From An Undeserving Owner?

Back in October, we had the honor of moderating a discussion about the ripeness issue in takings law at the 40th Anniversary Symposium on The Takings Issue at Touro Law School (see here and here for more). Professor Vicki Been and Pacific Legal Foundation’s J. David Breemer were the panelists, each weighing in on how Williamson County came to be, and what future the rule may have, if any. 

The Touro Law Review has now published Dave’s article, “The Rebirth of Federal Takings Review? The Courts’ ‘Prudential’ Answer to Williamson County’s Flawed State Litigation Ripeness Requirement.” Here’s the summary:

This article addresses recent developments in the law of takings arising from the courts’ application of the rule, articulated in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 185 (1985), that a property owner must sue for damages in state court to ripen a Fifth Amendment takings …

Continue Reading New Article Of Note: The Rebirth of Federal Takings Review? The Courts’ ‘Prudential’ Answer to Williamson County’s Flawed State Litigation Ripeness Requirement

You know the old saw, attributed to a variety of sources including Samuel Clemens, that “whiskey is for drinking, and water is for fighting over,” but here’s a decision from a U.S. District Court, that shows that whiskey is also for fighting over. Not quite whiskey, but a fungus that is claimed to be created by a nearby distillery.

In Merrick v. Diageo Americas Supply, Inc., No. 3:12-CV-334-CRS (W.D. Ky. Mar. 19, 2014), the fight was about “whiskey fungus,” which is created when ethanol is emitted from a distillery and “combines with condensation on Plaintiffs’ real and personal property to ’cause an invisible, naturally occurring fungal spore to ‘germinate’ (start growing) and become a living organism, visible to the naked human eye.'” This stuff “creates an unsightly condition requiring abnormal and costly cleaning and maintenance, early weathering of surfaces,” and is pretty much a nuisance.

More about the case…

Continue Reading It Turns Out That Whiskey (Fungus) Is Also For Fighting, After All

The Hawaii Constitution requires that a member of the state House of Representatives be a “qualified voter” of the district she or he represents. In Hussey v. Say, No. CAAP-13-0002255 (Apr. 24, 2014), the Hawaii Intermediate Court of Appeals analyzed how someone who asserts that the representative from District A is in actuality a qualified voter in District B goes about mounting a legal challenge. Is this really a challenge to the representative’s voter registration, and thus must be instituted in the county’s Board of Registration, or may the challenger institute a quo warranto lawsuit in state circuit court? The ICA settled on the latter answer, concluding that courts have jurisdiction to consider these type of claims. 

The case involved allegations that a long-time House member who represents one district and is registered to vote there was actually living in another district (where his spouse and family live and …

Continue Reading Quo Warranto Fu: Courts Have Jurisdiction To Determine Whether State Representative Is A Qualified Voter In His District

Here’s what we’re reading today:

  • “Flash Boys and the Transportation Corridor Act” – from the North Carolina Land Use Litigator blog, some thoughts about the recent NC Supreme Court decision that we described as a “muddled hash.” This is the one in which the court denied class certification to the claims of 800+ property owners whose land has been blighted by the Map Act, a statute that allows the NC DOT to prohibit the development of parcels where the DOT wants to put a future highway. In a recent story on the case by North Carolina Lawyers Weekly, we said this about the case: “‘I’ve read the decision a couple of times since it was published and it still is kind of inexplicable to me,’ he said in a phone interview.’It’s somewhat frustrating because you can’t quite figure out what the court’s analysis is and where that leaves

…
Continue Reading Thursday Round-Up: NC Beltway Blight Case, Precondemnation Entry Statute Unconstitutional, Why Buy Land You Can Get For Free?