2014

We often jokingly suggest that in eminent domain, “it’s good to be the King!” quoting that eminent eminent domain scholar Mel Brooks. We think this catchphrase aptly describes the “most awesome grant of power,” City of Oakland v. Oakland Raiders, 220 Cal. Rptr. 153, 155 (Cal. App. 1985), under which the condemnor has a very nearly unfettered ability to take property.

But in recent decision from the Missouri Court of Appeals it was good to be the landowner — the owner of a Burger King restaurant — because it had the good sense to hire Robert Denlow, our Owners’ Counsel colleague (and occasional Sunday golf partner) (that’s Bob in the above video, a 2013 interview). In City of North Kansas City v. K.C. Beaton Holding Co., No. WD76068 (Jan. 14, 2014), the Missouri Court of Appeals, Western District, held that the city, a …

Continue Reading Sometimes, It’s Good To Be The (Burger) King: General Power Of Eminent Domain Does Not Include Blight Elimination

Today, the Hawaii Supreme Court issued an option in Diamond v. Dobbin, No. SCWC-30573 (Jan. 27, 2014), a case about shoreline certifications that we’ve been following.

It’s a beach case, obviously, but not about ownership. Shoreline certifications approved by the State Department of Land and Natural Resources are used as the baseline from which to measure building setbacks on littoral parcels, and do not involve the boundary between public and private property on beaches.

The DLNR certified the shoreline on a Kauai parcel, and two nearby residents who claimed the shoreline was further mauka (landward) administratively appealed to the Board of Land and Natural Resources. The Board rejected the appeal and approved the certification, and the two neighbors appealed to the circuit court under HAPA. The circuit court concluded the BLNR’s findings of fact were wrong, and vacated the certification.

The property owner who sought the certification appealed to the…

Continue Reading HAWSCT: State Agency Must Consider “Historical Evidence” Of “The Upper Reaches Of The Wash Of The Waves” When Certifying Shorelines

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This: apropos of pretty much nothing that are the usual subjects of this blog. But felt compelled to share anyway.

Guy without a harness, three stories up, shaping and nailing flashing to a roof in New Orleans. Standing on a palette. On the end of the arm of a crane. Being operated by a guy talking on his cell phone.  Continue Reading Safety Last?

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One of the perks of attending the annual ALI-CLE Eminent Domain and Land Valuation conference (this year in New Orleans) is that in addition to 2 1/2 days of high-level CLE programming involving our favorite topic, you get to meet colleagues from across the nation (and internationally – expropriation lawyers from Canada were also with us, and gave us an update on the Antrim Truck decision). 

You also find out things that, despite the seemingly infinite resource that is the internet, you didn’t know before. And that’s how we came to find out about a new law blog, covering Wisconsin issues in eminent domain and related topics, “The Preeminent Domain” (http://thepreeminentdomain.com/). As an aside, we love that URL. 

Steve Streck, a partner at Axley Brynelson leads the blogging team, and thus far, their posts look pretty interesting (underwater mortgages, rails-to-trails, and, of course, Wisconsin-centric eminent domain…

Continue Reading New Eminent Domain (And Related) Law Blog

Coy Koontz, Jr., the prevailing property owner in Koontz v. St. Johns Water Management District, No. 11-1147 (June 25, 2013) joined our Pacific Legal Foundation colleague Jim Burling for an interview on Fox and Friends.

Kudos to Jim and Mr. Koontz for getting down to the studio in the wee hours of the morning — we shared dinner last night (Mr. Koontz has joined us to accept the 2014 Crystal Eagle award from Owners’ Counsel of America on Saturday), and even after all that a New Orleans meal involves, they were able to drag themselves to the studio and look remarkably fresh. Good work, guys.Continue Reading Coy Koontz, Prevailing Property Owner In SCOTUS Victory, Interviewed

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Between sessions at the annual ALI-CLE Eminent Domain and Land Valuation conference in New Orleans, planning Chair Joe Waldo took to the mic to say a few words about his co-Chair, Leslie Fields. Yesterday, Leslie announced that after 10 years, she’s retiring as Chair of the conference and that she is also retiring from the practice of law later this year. 

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Joe expressed his thanks for Leslie’s years of leading this conference and her many more years of representing property owners across Colorado in eminent domain and related cases. In addition to planning this conference, Leslie’s represented property owners in nearly every county in Colorado, won significant cases in the Colorado Supreme Court and federal courts, and literally written the book on the practice of eminent domain in in Colorado.

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Joe, Leslie, and Andrew Brigham and Jack Sperber (co-Chairs of the Eminent Domain 101 program)

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 Leslie reminded us that…

Continue Reading Thank You, Leslie Fields

Here are the cert briefs in Kellberg v. Yuen, No. SCWC-12-0000266 (Haw. Jan. 22, 2014), the case in which the Hawaii Supreme Court held that there is only one “final decision” that a challenger must administratively appeal when objecting, and that due process requires the agency to give a challenger notice of the administrative process. 

We represent the prevailing Petitioner in the case, and promised to post the cert briefs, which, along with the briefs filed in the Intermediate Court of Appeals, are all of the appellate briefs filed in the case (the court did not request additional briefing after accepting cert). So here they are:

We’re still at the ALI-CLE Eminent Domain conference, so have not had a chance to write up our thoughts on the opinion, so until we do, here’s…

Continue Reading Cert Briefs In Admin Due Process Case

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This morning, I joined my Owners’ Counsel colleagues Leslie Fields and Joe Waldo (the programming co-chairs), and more than 100 fellow eminent domain experts in New Orleans under the auspices of ALI-CLE at our annual gathering for the start of 2 1/2 days of legal education. 

Joe and Leslie asked me to join Professor James Ely to speak about “The Full and Perfect Equivalent for Just Compensation: The Historical Context and Practice.” Professor Ely led us off with a crash history of just compensation, starting with the Magna Carta and where we’ve been, and then handing it off to me for the “where we are and where we may be going” segment.

Just to prove to you all that while in New Orleans, I really did show up and not get distracted by the many (many) distractions that this city can offer, the above is a…

Continue Reading A Dispatch From The ALI-CLE Eminent Domain Conference (With Links)

The Hawaii Supreme Court has issued an opinion that is very good for property owners and anyone who must use the administrative appeals process. [Disclosure: we represent the prevailing Petitioner in this case.]

In Kellberg v. Yuen, No. SCWC-12-0000266 (Jan. 22, 2014), the unanimous court, in a detailed opinion by Justice Pollack, held that a person who challenged the County of Hawaii’s admittedly illegal subdivision of a neighboring parcel need only appeal to the Board of Appeals from the “final” subdivision approval, and not a decision made months later. The court also held that if an agency believes that its decision must be appealed via its administrative process, it has an obligation to say so in a clear way:

If the goal of the exhaustion doctrine is to redirect grievances to their proper forum, then such a goal is not served by fostering uncertainty over the Director’s decisions and…

Continue Reading HAWSCT: Triggers To Administrative Appeals Must Be Clear And Noticed

Our Latin cousins warned us long ago homo sapiens non urinat in ventum (“a wise man does not pee into the wind”) but such wisdom doesn’t prevent us from trying at times to buck the conventional thinking. Because sometimes, you don’t know which way the wind is blowing until you go outside and actually feel the breeze. 

Today, the U.S. Supreme Court told us. In a one-line order, the Court affirmed the three-judge U.S. District Court’s ruling that the 2012 Hawaii Reapportionment Plan, which excluded active duty military, military families, and students who do not pay resident tuition from the population basis, did not fall short of Equal Protection’s requirements. See also SCOTUSblog’s “Hawaii Redistricting Upheld.” The 2012 Plan treats these classes as residents who have not exhibited the intent to remain in Hawaii “permanently.” The Court also affirmed the 2012 Plan’s very large (44% and 21%)…

Continue Reading Supreme Court Upholds Hawaii Redistricting Plan