March 2015

Check out State ex rel. Sunset Estate Properties, LLC v. Village of Lodi, No. 2013-1856 (Mar. 10, 2015),  a case in which the Ohio Supreme Court held that a local zoning ordinance was unconstitutional on its face.

The Village’s zoning code, adopted in 1987, banned manufactured home (trailer) parks. Of course, the ordinance could not ban those parks already in existence, which were allowed as nonconforming uses. Sunset Estates was one such park.

The ordinance also provided that if a nonconforming use was discontinued for six months, that was evidence of the owner’s intent to abandon the nonconforming use:

Whenever a nonconforming use has been discontinued for a period of six months or more, such discontinuance shall be considered conclusive evidence of an intention to legally abandon the nonconforming use. At the end of the six-month period of abandonment, the nonconforming use shall not be re-established, and any further…

Continue Reading A Zoning Due Process Violation From The Land Of Euclid: Owner Can’t Lose Nonconforming Use By Actions Of Tenant

Here’s the amici brief of the National Association of Home Builders, the National Association of Realtors, the National Association of Independent Business Small Business Legal Center, and others in the case we’ve been following out of the federal courts in Florida about a county’s “right of way preservation” ordinance (which is somewhat similar, but perhaps worse in some ways than North Carolina’s Map Act).

As you might recall, the federal district court held that the ordinance — which allows the county 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” — violated Hillcrest’s due process rights. Yes, the Takings Clause was part of the mix in that it was Hillcrest’s right to just compensation that the county wrongfully interfered with (see Nollan, Dolan, and Koontz), but this was…

Continue Reading Amici Brief: Didn’t Lingle Tell Us That Due Process And Takings Are Distinct Claims?

Railcoming

If you didn’t have a chance to attend last week’s community meeting on the Honolulu rail project and property rights at Farrington High School, we’ve posted the audio clips, which include the big picture, the current status, and a series of frequently asked questions.

  • FAQ’s and background (including “The Numbers: How Much Land, How Much Money, How Much Time?,” “Key Terms in Eminent Domain,” “The ‘Dear Owner’ Letter,” “Appraisals From an Eminent Domain Perspective,” “Business Losses, Lost Profits, and Business Interruptions,” “Relocation Benefits,” and more)
  • KITV video report
Related articles
Tommorrow’s Public Rail Project Forum: Eminent Domain, Just Compensation, And Protecting Property Rights
Property Owners Invited: Honolulu Rail Project Public Informational Meeting, Thursday, March 5, 2015, Farrington High School
Video: Report On Community Meeting On Property Rights And The Honolulu Rail
hawaiioceanlaw.com: Knowing Your Rights: Honolulu Rail Project and Right of Way Acquisitions

Continue Reading Honolulu Rail FAQ’s (And Answers) From Last Week’s Community Meeting

On Thursday, March 5, 2015, we held a community forum on the Honolulu rail project, with an overview of the acquisition, eminent domain, and relocation process. For those who were not able to join us, we recorded the sessions, and post them below.

For HART’s video flyover simulation of the entire Phase 1 system, go here.

Introduction: An Overview of the Honolulu Rail Project:

The Numbers: How Much Land, How Much Money, How Much Time?

Key Terms in Eminent Domain Law:

The Acquisition Process: Negotiation and the “Dear Owner” Letter:

Appraisals From the Eminent Domain Perspective:

Frequently Asked Questions

Can I stop the Honolulu Rail Project?

Can I force HART to move the alignment of the guideway?

Do I have claims for noise, dust, and vibrations from the project construction and operation?

Business losses, business interruption, and lost profits

Property Taxes in Eminent Domain

Mortgages and Eminent Domain…

Continue Reading The Honolulu Rail – An Overview Of Property Rights Issues & Answers To Frequently Asked Questions

CalliescrystaleagleA reminder to please RSVP (see below) for this Thursday’s event honoring University of Hawaii Law Professor David L. Callies.

On March 12, 2015, 5:30 – 6:30 p.m., we’ll be awarding Professor Callies the Owners’ Counsel of America‘s Crystal Eagle. Joining us will be his current and former students (of whom there are many), his faculty colleagues, the Hawaii property bar, and friends. The Crystal Eagle recognizes Professor Callies’ decades of property rights scholarship, his advocacy, and his international expertise in property law. 

Supreme Court of Hawaii Associate Justice Sabrina McKenna (a former student of Professor Callies) will give an introduction.

Professor Callies joins a list of past recipients which includes scholars (Professors James Ely amd Gideon Kanner), Supreme Court advocates (Michael Berger), public interest lawyers (James Burling of Pacific Legal Foundation and Dana Berliner of the Institute for Justice), journalists (Alan Colmes and Sean Hannity), nationally-renown eminent…

Continue Reading A Reminder: RSVP For This Thursday’s Reception Honoring U. Hawaii Lawprof David Callies

A short one from the Florida District Court of Appeals, Florida Dep’t of Transportation v. Mallards Cove, LLP, No. 2D13-181 (Mar. 6, 2015), a regulatory takings case that followed on the heels of a straight condemnation.

The DOT condemned property belonging to Mallards Cove via Florida’s quick take procedure, by which certain agencies may obtain immediate possession and title, provided they deposit a good faith estimate of the land’s value with the clerk of the court. Under Florida law, the property owner’s right to just compensation is then vested, and two weeks later, the property owner withdrew the $2 million deposit. While the funds were on deposit, he clerk invested it, and under a Florida statute, 90% of the interest went to the DOT. The eminent domain case wrapped up, with the owner agreeing that the final judgment represented full compensation for the property taken.

But the owner wasn’t…

Continue Reading Fla App: Quick Take Deposit Only Vests Owner’s Right To Compensation, Not To Specific Funds

Weird headline from KITV. No, owners whose property is taken for the rail aren’t “profiting” if they are able to get more for their land than what the condemning agency offered; “just compensation and damages” are required by the constitution, and if they are able to obtain more, in many cases that still leaves them undercompensated and simply means the condemnor’s offer was inadequate.

But besides the headline, KITV does a good report on last night’s community forum on property owners’ rights in eminent domain which we sponsored. 

Related articles
Tommorrow’s Public Rail Project Forum: Eminent Domain, Just Compensation, And Protecting Property Rights
hawaiioceanlaw.com: Knowing Your Rights: Honolulu Rail Project and Right of Way Acquisitions
inversecondemnation.com: Property Owners Invited: Honolulu Rail Project Public Informational Meeting, Thursday, March 5, 2015, Farrington High School
NJ Court: There’s No Substitute For The Eminent Domain Process, Even On The Shore, Even In An

Continue Reading Video: Report On Community Meeting On Property Rights And The Honolulu Rail

The Virginia Supreme Court recently heard oral arguments in Ramsey v. Commissioner of Highways, a case we’ve been following closely (and in which we filed an amicus brief in support of the property owners). 

This is the case about Virginia’s statutory requirements in eminent domain cases. As a prerequisite to a court exercising jurisdiction over a condemnation complaint, a state condemning agency must as an initial step present a statement of “the amount which [the condemnor] believes to be just compensation,” to the property owner, and must include an appraisal if an appraisal is required. 

The trial court viewed the required “statement” as a settlement offer, and prohibited the property owner from both telling the jury about the statement, and cross-examining the state’s appraiser about it. Even though the state’s initial statement of just compensation was $246,292, and later, its new appraiser at trial testified that just compensation…

Continue Reading Virginia Supreme Court Oral Arguments: Does A Precondemnation Value Statement Come In?

As reported yesterday by Pacific Business News (“HART acquired 34 properties for $70M along Honolulu rail transit route, new report says“), “[t]he Honolulu Authority for Rapid Transportation has acquired 34 properties totaling about $70.2 million thus far along the 20-mile rail transit route, including the recent purchase of a former sports bar property near Ala Moana Center for about $1.35 million.” 

In other words, it’s begun. 

In response to the many questions we’ve received from property owners, businesses. and homeowners whose rights may be at stake in the rail takings, we’ve organized a public forum to provide information about the project, Hawaii’s eminent domain process, and  how to protect the rights of people whose property or businesses are subject to acquisition. 

Details:

More information here…

Continue Reading Tommorrow’s Public Rail Project Forum: Eminent Domain, Just Compensation, And Protecting Property Rights