2014

Update: San Francisco is going to appeal.

It cost a lot to live in San Francisco, these days. A whole lot, whether you own, or rent. 

If you’re a renter, however, you should hope and pray that your landlord wants out of the rental business. Because under a San Francisco ordinance, property owners who rent their properties but then decide they don’t want to continue to do so must get a permit from the City in order to quit. Another requirement of the ordinance is that the owner pay cash to a displaced tenant — a lump sum “relocation payment” of 24 times “the difference between the units’ current monthly rent and an amount that purports to be the fair market value of a comparable unit in San Francisco, as calculated by a schedule developed by the Controller’s Office.” 

The Levins wanted out of the rental business, and…

Continue Reading Federal Court: San Francisco’s Housing Exaction Violates Nollan-Dolan-Koontz

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If you haven’t already, please mark you calendars: the agendas and faculty lists for the February 5-7, 2015 ALI-CLE eminent domain programs in San Francisco have been finalized. Registration is ongoing, and there’s even a few more days left for the early registration discount. Substantial group discounts are also available. 

We’re talking, of course, about Eminent Domain and Land Valuation Litigation (the “masters” program, now in its 32nd year), and Condemnation 101: How to Prepare and Present an Eminent Domain Case (the boot camp or refesher course on eminent domain fundamentals).  We’re the co-Planning Chair of the Eminent Domain and Land Valuation Litigation program along with Joe Waldo, and we think we’ve assembled an exciting agenda, presented by a faculty comprised of the nation’s best-of-the-best in our field of law.

Some highlights:

  • Eminent Domain National Law Update – Amy Brigham Boulris, Gunster, Yoakley & Stewart, P.A.,

…
Continue Reading ALI-CLE 2015 Eminent Domain and Land Valuation Litigation & Condemnation 101 Agendas And Faculty Announced

When the Second Circuit issued its opinion in Kurtz v. Verizon New York, Inc., 758 F.3d 506 (2d Cir. 2014), our comments were rather harsh (“Which means that to reach the result, the court simply rewrote the plaintiff’s complaint and in the process blurred the distinction between a takings claim … and a procedural due process claim[.]”). We wondered aloud whether the Second  Circuit widening the split in the federal circuits over whether Williamson County ripeness applies outside of the Takings context is “enough of a circuit split to get the Supremes interested?”

Well, it was enough to get our colleagues over at the Insitute for Justice interested, for sure. Yesterday, they filed a cert petition asking the Supreme Court to review the following Questions Presented:

This Court, in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), said that property owners bringing certain Takings Clause…

Continue Reading New Cert Petition: Does Williamson County Ripeness Apply To Procedural Due Process Claims?

As we all understand, when valuing property in eminent domain, the highest and best use of not limited to the property’s existing use or its current zoning. The owner is entitled to prove that she could reasonably make a more intensive use of the property.

Rodman v. Commonwealth, No. 12-P-223 (Oct. 7, 2014) involved a partial taking of partially developed land (part of it was used as temporary parking lot for the Patriots’ stadium, across Route 1 from the property) for a road expansion by the Massachusetts Department of Highways. When at trial the property owner attempted to show that the land could be developed much more intensely before the taking than after, the court refused to let the jury hear evidence of the owner’s development plans, and evidence of the development approach to value. “Ultimately, the jury awarded damages of $600,800, the exact amount the Commonwealth’s expert testified…

Continue Reading Mass App: Eminent Domain Jury Entitled To Consider Evidence Of Potential Development

We didn’t think the issue of whether a property owner is competent to testify about the value of his or her own property was unsettled, but apparently an Alaska trial court did. In an inverse condemnation action which claimed that the operation of a nearby airport diminished Mr. Briggs’ property value, the court granted the City summary judgment “because the property owner failed to submit any expert testimony regarding damages.” 

The Alaska Supreme Court reversed. In Briggs v. City of Palmer, No. S-14969 (Sep. 12, 2014), the court concluded that an inverse condemnation plaintiff does not need expert testimony to prove the value of damages, relying on established Alaska law. The court cited several of its own earlier decision which hold that property owners are competent to testify about the value of their own property. 

Given that precedent, what gives? What would make the trial court conclude otherwise? Maybe…

Continue Reading Alaska: Owner Can Testify About Value Of Their Own Property

Here’s one for the regulatory takings mavens, because it has just about every conceivable issue: ripeness, res judicata (yes, arugment was that the complaint was filed both too early and too late), Rooker–Feldman, the Tax Injunction Act, and an analysis of whether the property owner’s complaint stated a claim for relief under the Takings Clause. 

At issue in Coleman v, District of Columbia, No. 13-1456 (D. D.C. Sep. 30, 2014) was the District’s statutory provision which allowed it to place a lien on properties whose owners do not pay their full property tax bill, and then sell the property at auction if the lien is not satisfied. So far so good – this scheme isn’t that much different from similar provisions in virtually every state. The problem with DC’s system is that “the law permits the taking of not only the amount of delinquent taxes, plus any…

Continue Reading Federal Court: DC’s Tax Sale Statute May Be A Taking

Mark your calendars for Friday, October 24, 2014, the date of the Hawaii Bar Association Convention, in Honolulu. As noted here, the HSBA’s Appellate Law Section is sponsoring a three-hour session featuring the Chief Justice of the Hawaii Supreme Court, the Chief Judge of the Intermediate Court of Appeals, other justices and judges, and appellate practitioners with insider views of the appellate courts. 

If that’s not enough to get you there, you can fulfill your entire CLE yearly requirement in one session, also. A must-attend for you appellate nerds (or anyone else interested in how the common law develops in our fair jurisdiction). 

More on the program from Rebecca Copeland’s Record on Appeal blog, including registration information. 

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Hawaii Appellate Section’s Fourth Annual Meet & Greet

Continue Reading Appellate Practice CLE At Hawaii Bar Convention

If that title doesn’t grab you, nothing will. Here’s the description of an upcoming program from the American Planning Association that looks awfully interesting:  

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Sex, Guns & Drugs:  Planning for Controversial Land Useson Wednesday, October 22nd from 1:00 to 2:30 PM CST. Registration is $20 for PLD members, $40 for nonmembers, and $45 for webinar registration plus a Planning and Law Division membership. Presented by Daniel J. Bolin and Gregory W. Jones of Ancel Glink, this webcast will explore if and where controversial businesses belong in communities.

The U.S. Constitution guarantees freedom of expression, freedom of religion, and the right to bear arms. But it’s not that simple. Businesses that rely on these constitutional guarantees continue to generate controversy in communities across the country. To compound matters, state legislatures from Arizona to Massachusetts have been busy granting new — and in many cases, previously unheard of — rights to marijuana and firearm retailers.This has rapidly drawn planners and zoning practitioners into the debate over how these businesses best fit into their communities, and whether their communities are legally obligated to accommodate these uses in the first place. Spend an hour learning about the issues and regulatory strategies from around the country. 

Webcast—Sex, Guns & Drugs:  Planning for Controversial Land Uses

October 22, 2014

1:00 – 2:30 PM CST

More information here

, including registration. 
Continue Reading Upcoming Webcast: “Sex, Guns, And Drugs: Planning For Controversial Land Uses”

When the feds need medical care for prisoners, by statute, the Medicare rate is set as the full compensation owed to medical services providers. One of those providers, Baker County Medical Services, sued in U.S. District Court, seeking a declaration that the statute is a taking because, “it is forced to render emergency medical care to federal detainees but its compensation for such treatment is limited to the Medicare rate, an amount less than its actual costs.” 

Short answer, according to the 11th Circuit in Baker County Medical Services, Inc. v. U.S. Att’y General, No. 13-13917 (Aug. 14, 2014): no.

The reason: Baker County Medical chose to treat all emergency patients, including federal prisoners, so can’t complain that the pay is not enough:

Even so, a long line of cases instructs that no taking occurs where a person or entity voluntarily participates in a regulated program or activity. We…

Continue Reading 11th Cir: Voluntarily Treating Federal Prisoners Means No Takings Claim For Partial Reimbursement For Medical Costs