June 2015

Apa_2015_planning_law_review

On Wednesday, July 1, 2015, the American Planning Association is putting on the 2015 Planning Law Review, a program highlighting the most important and topical cases decided by the courts recently. Here’s the program description:

Planning feels the impact of decisions from the U.S. Supreme Court, federal district courts, and state courts. How will their rulings affect you? Get a briefing on the year’s legal developments, from First Amendment issues to environmental actions, housing, and equal access. Presenters also will discuss major legislative initiatives and APA’s amicus filings. Join in a lively, informative program you and your staff, colleagues, and officials won’t want to miss. This program is also suitable for planning commissioners.

Joining me on the faculty are Jason Jordan, Director, Policy and Communications, American Planning Association (Moderator); Nancy Ellen Stroud, Lewis, Stroud & Deutsch; John M. Baker, Greene Espel; and John Echeverria, Professor of…

Continue Reading Upcoming APA Webinar: 2015 Planning Law Review

We are distracted today so haven’t had the time to write up our initial thoughts about Horne v. Dep’t of Agriculture, No. 14-275 (June 22, 2015), the California raisins takings case which the Supreme Court decided yesterday.

So instead we did this video, a take off on those goofy tech “unboxing” videos.

We’ll have more in the traditional format once we have a chance to write something down.  Continue Reading Unboxing Video: Horne v. Dep’t of Agriculture

In case you somehow missed it, takings junkies, today, June 23, 2015, is the tenth anniversary of the U.S. Supreme Court’s excreable 5-4 decision in Kelo v. City of New London, 545 U.S. 469 (2005), and just about anyone who is anyone in our field has weighed in with a retrospective. We don’t have much to add, since wiser minds than ours have some very cogent thoughts.

But here’s how we view the decision, ten years on:

  • Still stinks. A decade has not lessened the odor.
  • We filed an amicus brief in Kelo explaining why economic development wasn’t enough to support New London’s taking of a perfectly good home, and we still think we’re right. 
  • Many states and local jurisdictions reacted and adopted legislative reforms. Some helpful, many not. Guess which state did nothing, despite several proposals made over several legislative sessions? Hawaii, where we say we like the little

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Continue Reading Kelo At 10: Still Stinks, And A Decade Has Not Lessened The Odor

In all of today’s excitement about the Court’s opinions in Horne v. Dep’t of Agriculture, No. 14-275, the “raisin takings” case which we posted about earlier, we almost lost sight of the other property rights decision issued by the Court, City of Los Angeles v. Patel, No.13-1175 (June 22, 2015). 

The case did not present takings, land use, or eminent domain issues, but we’ve been following along with interest nonetheless, because at stake was the right of a Los Angeles hotel owner to require the police to obtain a warrant before he allowed inspection of the hotel’s guest register. The Court’s majority said yes, hotel owners really do need the opportunity to make the police get a warrant before the police can force the hotel to open up its records.

The opinion by Justice Sotomayor and joined by Justices Kennedy, Ginsburg, Breyer, and Kagan, didn’t talk about property…

Continue Reading Today’s Other Supreme Court Property Rights Decision

Any time the Supreme Court rules for a property owner in a takings case, you’ve got reason to celebrate. 

They didn’t pay the fine, g8vt didn’t take grab their raisins. Case over
So whats next? Does the dept have to write a check to the Hornes for $xxxx? Well, no, they csnt get that relief in usdc.
Breyer didnt apply the free rider argument to the taking part, but to the just comp part.
Do i want to live in a country without a raisin makrketing board?
1. Title page …. syllabus … who cares….

2. More syllabus ….

3. More syllabus …

4. OK, here we go. “PHYSICALLY SET ASIDE” OK, game over, Hornes win. This is going to be another one of those cases in which we cite for the Court’s physical occupation fetish – you know, Kaiser Aetna, Loretto … and now Horne.
“The question is whether…

Continue Reading Easy Cases Made Hard: Horne v. USDA And California Raisins (And Affordable Housing)

… look no further than the above report from The Daily Show.

Yeah, it’s satire and does at times make light of a serious case, but the USDA was trying to defend a regulation that branded the Hornes as “raisin outlaws,” going so far as to hire a private security firm to “investigate the product” that the Hornes were defrauding the government of (dried fruit).

Top off “the world’s most outdated law” with the Ninth Circuit’s ridiculous avoidance after the Supreme Court’s earlier remand (the Takings Clause does not apply with equal force to personal property as it does to land) , and you have the recipe for success and an 8-1 ruling. 

Related articles
Magna Raisins: 8-1 SCOTUS Says There’s A Taking, But Not All Agree On

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Continue Reading Here’s Why The Supreme Court Held The Raisin Marketing Order Was Unconstitutional…

Update: here’s more Horne talk, in addition to our own initial thoughts in the above video and this post (“Magna Raisins: 8-1 SCOTUS Says There’s A Taking, But Not All Agree On Remedy“):

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Continue Reading Raisin Round-Up

Here’s the podcast of our recent talk to the American Bar Association’s Section of State and Local Government Law about the (then) upcoming decision in Horne v. Dep’t of Agriculture, No. 14-275. Transcript here, if you’d prefer to read it.

This is a preview of the decision. But since we made some predictions — several of which bore fruit in today’s opinions — we thought we’d post it while we digest the Court’s opinions. 

As you may know, the Court today issued its opinions, with eight justices concluding that the raisin marketing order is a physical taking of property, rejecting the Ninth Circuit’s holding that the physical takings rules do not apply when personal property is involved.

We’ll have more analysis shortly, including a round-up of how other commentators view the case. Stay tuned. 

Related articles
Magna Raisins: 8-1 SCOTUS Says There’s A Taking, But Not All

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Continue Reading Podcast: Leviathan Shrugged? The Supreme Court’s Raisin Takings Case

As we predicted, the Supreme Court today held that personal property — here, raisins — is property protected from uncompensated acquisition, and that the USDA’s New Deal regulations pursuant to which the Department fined the Hornes for not turning over to the government a massive percentage of their yearly crop without compensation, is a physical taking under Loretto. Horne v. Dep’t of Agriculture, No. 14-275 (June 22, 2015). 

Eight justices rejected the Ninth Circuit’s weird ruling that the regulations did not work a taking because raisins are personal property and not land, holding that “[t]he reserve requirement is a clear physical taking. Actual raisins are transferred from the growers to the Government.” Slip op. at 8. The Court cited [the] Magna Carta, noting it protected certain crops from appropriation:

The Takings Clause provides: “[N]or shall private property be taken for public use, without just compensation.” U. S.

Continue Reading Magna Raisins: 8-1 SCOTUS Says There’s A Taking, But Not All Agree On Remedy