June 2015

Here’s one that isn’t about land use, but should be of interest to Hawaii land users, since so much of what we do is tied up in the Administrative Procedures Act. 

Hawaii’s APA can be a trap for the unwary: if you run to court to challenge what you believe is the agency’s appealable action, you may be met with a claim that you picked the wrong action, and you needed to exhaust the agency’s own internal administrative appeals process first, and it is now too late to invoke the trial court’s original jurisdiction. And if you err on the side of caution and invoke the agency’s appeal process, you may end up prematurely challenging all sorts of agency decisions when you really didn’t need to. Add to the mix the confusion among many not familiar with this territory — about what type of agency action triggers the ability to appeal…

Continue Reading HAWSCT Clarifies What Qualifies As An Appealable Agency Action Under The Administrative Procedures Act

We’ve already weighed in on how the Court of Federal Claims’ decision holding that the government’s takeover of AIG was an illegal exaction, but that it wasn’t a taking. But here are the thoughts of others:

  • Lawprof Ilya Somin: “Court rules that federal takeover of AIG was an “illegal exaction,” but not a taking” (“As Judge Wheeler notes, the rule that illegal exactions cannot qualify as takings is based on longstanding precedent. But I am nonetheless skeptical of its validity. It seems to me that a taking occurs any time the government seizes private property, regardless of whether the government’s action was otherwise properly authorized or not. just as unauthorized government action can violate other constitutional rights, such as those protected by the First Amendment or the Fourth Amendment, so too it can violate the Takings Clause of the Fifth Amendment. Nothing inherent in the logic of either

…
Continue Reading AIG/Starr Round-Up

Opinions reversing grants of summary judgment tend to be unexciting by nature because they are all about whether one side or the other submitted enough evidence to create a factual dispute that a jury must resolve. Civil procedure mavens rejoice, but the substantive law in the opinion can be dry. The latest inverse condemnation case from the Texas Supreme Court, Harris Cnty Flood Control Dist. v. Kerr, No. 13-0303 (June 12, 2015) is no exception, even though it is about (sorry, pun intended) flooding. 

The property owners brought an inverse case after their land and homes were repeatedly flooded, blaming the flood control district for approving the development of the land in the first place, even though the district spent a lot of money on flood control. The property is in a flood zone, and the district didn’t require the appropriate mitigation measures when it approved development.

Under Texas…

Continue Reading Texas: Property Owners Entitled To Trial On What Govt Knew About Flooding And When It Knew It

You remember that Ingrid Bergman and Charles Boyer classic “Gaslight,’ in which Bergman’s character is driven by her manipulative husband to doubt her own grip on reality? It gave rise to the term “gaslighting,” which, according to Wikipedia, is “a form of mental abuse in which information is twisted or spun, selectively omitted to favor the abuser, or false information is presented with the intent of making victims doubt their own memory, perception, and sanity.”

Well, yesterday’s New York Times report about the verdict in the AIG bailout takings case, “In A.I.G. Case, Surprise Ruling That Could End All Bailouts,” for a moment had us believing we were being gaslighted, because the Court of Federal Claims had issued a zero verdict for the plaintiffs in their takings case against the federal government, even though the court ruled the government wrongly conditioned…

Continue Reading Is The NYT Gaslighting Us? In What Alternate Reality Is The CFC’s Zero Just Comp Award A Victory?

This just crossed our desk in a case we’ve been following (link includes the numerous merits and amicus briefs filed in the case), the California Supreme Court’s opinion, authored by the Chief Justice in California Building Industry Ass’n v. City of San Jose, No. S212072 (June 15, 2015). 

The bottom line is the court agreed that rational basis review is the applicable standard:

As noted at the outset of this opinion, for many decades California statutes and judicial decisions have recognized the critical need for more affordable housing in this state. Over the years, a variety of means have been advanced and undertaken to address this challenging need. We emphasize that the legal question before our court in this case is not the wisdom or efficacy of the particular tool or method that the City of San Jose has adopted, but simply whether, as the Court of Appeal held…

Continue Reading Cal Supreme Court: Affordable Housing Exaction Subject Only To “Aliens Might Have Done It” Rational Basis Review

The Court of Federal Claims has issued its Opinion and Order in the AIG takings case, which we have been following. This is the case brought by “uberlawyer” David Boies. Background on the case, here, including pleadings, and audio of a talk we gave about the case to the ABA. At the early stages of this case, we characterized any claim for $25 billion, even when the plaintiff is represented by a top-shelf guy, as “audacious.”  

Bottom line: the feds treated AIG badly, very badly. But the measure of liability in a takings case isn’t based on bad treatment generally, but on bad treatment economically. And in that arena, “twenty percent of something [is] better than 100 percent of nothing.” 

We’ll have more after we’ve had a chance to review the 75-page single-spaced opinion, so complex it needed to have a dramatis personae appended (pages…

Continue Reading Audacity Ain’t Enough For The CFC: Gov’t Behaved Badly, But AIG Bailout No Taking Because No Damage

Pic_shot_1429716535697

            “It’s Frank’s world, we just live in it.”

                      – attributed to Dean Martin, about Frank Sinatra

A narrowly drawn opinion from the Supreme Court in Horne v. Dep’t of Agriculture, No. 14-275, argued in April and to be decided by the Court sometime before the Term ends this month, could attract more than the needed five Justices to form a bare majority, and the initial reports from the arguments agree that the Hornes’ takings argument appeared to gain traction with at least a couple of Justices from the Court’s left bloc. Combined with the property-friendly Justices and Justice Kennedy (who appeared to view the government’s arguments with great skepticism), they could put the Hornes well over the top. 

There may be much more at stake, however, if any part of the government’s…

Continue Reading Leviathan Shrugged: Oral Arguments In Horne Reveals The Taking, But Remedy Still Open

A few years back, we posted the Wisconsin Supreme Court decision holding that airspace is property under Wisconsin law, Brenner v. New Richmond Regional Airport Comm’n, 816 N.W.2d 291 (Wis. 2012). The property owners argued that a runway extension project — which condemned a portion of their property which was zoned commercial-industrial, but used for agricultural purposes — did not take into account 

The Supreme Court remanded the case for trial.

That didn’t go so well for the property owners when the trial court dismissed their inverse condemnation case because the overflights from the runway were not of sufficient frequency or duration to become a taking.

In this short per curiam opinion, the court of appeals affirmed. 

Brenner v. City of New Richmond, No. 2014AP799 (Wis. App. May 27, 2015)

Continue Reading Wisconsin App: Any Loss Of Value Was Because Of Proximity To Airport, Not Overflights

Remember that case we posted on a few months ago, where the Texas Supreme Court was asked to review the issue of whether trial courts have jurisdiction to supervise eminent domain cases which are in the “administrative” phase and not yet in the “judicial” phase (City of Dallas v. Highway 205 Farms, Ltd., No. 05-13-00951)? 

Last week, the court aked the parties to file briefs on the merits. Our understanding is that this is not a grant of full-blown discretionary review under Texas appellate procedure, but rather an intermediate step to give the court more argument as it considers granting full review. But at least this is a step in the right direction. 

The trial court in the Highway 205 Farms case dismissed the condemnor’s complaint for lack of prosecution because the valuation commissioners took an extraordinarily long time to schedule a hearing (one and…

Continue Reading Texas Supreme Court Wants More Argument: Is Court Powerless When A Condemnor Dithers?

A new article worthy of your time from The Urban Lawyer, the law review published by the ABA Section of State and Local Government Law: “The Power of Eminent Domain in the Aftermath of Hurricane Katrina: Should Common Interest Communities Be Compensated for the Loss of Asssments,” by James R. Conde.

The article (rightly, we think) criticizes the Fifth Circuit’s decision in United States v. 0.073 Acres of Land, 705 F.3d 540 (5th Cir. 2013), a case we wrote up here. The Supreme Court denied review, 

Here’s the abstract of the article:

In 2005, Hurricane Katrina flooded New Orleans and destroyed approximately 80% of the city’s housing stock. The New Orleans flood generated a corresponding flood of litigation against the Army Corps of Engineers (the “Corps”). After the storm, Congress took steps to repair the Corps’ impaired reputation and to provide disaster relief to…

Continue Reading New Article: “Eminent Domain in The Aftermath of Hurricane Katrina”