July 2015

Hawaii Business magazine has a new report about Honolulu rail. The headline asks, “How Much Will It Cost Us In The End?” 

There are questions of how much over original projections the rail project currently is. Or whether it is really over budget at all. Anywhere from zero (according to HART), to $1 billion. And, of course, whether there is an upper limit on how high the costs could go. Anyone with an interest in rail should read the story.

The only thing we have to add is that in our view (as we wrote here), the only honest answer is “as much as it takes.”

The project is already being built, and they aren’t going to simply stop now that they’ve started to pour concrete. In addition to having commenced construction, the legal machinery of the project is well underway, with properties being acquired and…

Continue Reading Hawaii Business Magazine Asks: “How Much Will Rail Cost Us In the End?” Our Answer: As Much As It Takes

We’re in Chicago this week participating in the ABA Annual Meeting. While we really are looking forward to a slate of thrilling committee meetings, what we’re really anticipating is the CLE programming. Here are what we think are the highlights:

  • Looming Land Use Constitutional Issues –  Friday, July 31, 2:45 – 4:15 pm, Westin Chicago River North Grand Ballroom B –  Four hot land use issues: land use aspects of medical marijuana legislation; takings and exactions in San Francisco’s requirement for owners to pay departing tenants huge sums; Horne and takingsNew Jersey’s dune program. With Tony Della Pelle and Stephen Schwartz (one of the counsel for the Hornes), among others. 
  • The 2014 Supreme Court Term in Review – Friday, July 31, 2015, 10am – noon, Westin Chicago River North Promenade Ballroom C – “This panel of noted legal professionals, academics and journalists provides an overview of the Supreme Court

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Continue Reading ABA Annual Meeting Programming: Takings, Land Use, Supreme Court, Election Law, Appellate Traps

Check out the Federal Takings blog, which notes that the Supreme Court has asked the federal government to respond to the cert petition in Ministerio Roca Solida, Inc. v. United States, No. 14-5058 (filed May 27, 2015). The government previously waived its right to respond.

The issue presented in the case is one which the Supreme Court dodged in in United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011): whether 28 U.S.C. § 1500’s jurisdictional bar — which deprives the Court of Federal Claims of jurisdiction if a related case is pending in another court at the time the CFC complaint is filed — operates in takings claims, which are required to be split between the CFC and the district courts (aka the “Tucker Act Shuffle”). We filed an amicus brief in Tohono, arguing that the statute cannot be read to deprive takings plaintiffs of…

Continue Reading SCOTUS Requests Response To § 1500 Petition

If you need CLE credits, you are in luck. There’s a plethora of upcoming programs that may be of interest to readers. 

First, the ones we’re involved with:

  • The Takings Issue – August 10, 2015, 1 – 2pm ET (webinar) – from the International Municipal Lawyers Association. We’re joining Professors Dan Mandelker and John Echeverria, and land use lawyer Michael Giairno, to talk takings. “Two titans of takings, who just happen to have profoundly opposing views of the world, have graciously agreed to discuss the latest developments and spar. This will be the Great Debate of 2015.” Sounds like fun, no? Registration free for IMLA members, $99 for everyone else. More information, including registration, here. 
  • Is Sharing Really Caring? The Law of Transportation Sharing: Uber, Lyft, and the Sharing Economy – July 30, 2015, 2:15-3:45pm CT (in-person) –  at the ABA Annual Meeting in Chicago. We’re moderating a session

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Continue Reading Mark Your Calendars For Upcoming Events: Takings, Sharing Economy, Fair Housing, etc.

No, it’s not the latest economic development project, but an item we’ve reported on earlier: Jeff Benedict’s “Little Pink House” book about the Kelo case is being turned into a movie. Here’s a Reason interview with one of the movie’s producers explaining why the story attracted them, and what we can expect from the film.

Biggest question we have is the casting. Here are our earlier suggestions. 

Related articles
HAWSCT Again Clarifies When A Judgment Is “Final” And Appealable (They’re Serious About This Finality Thing)
Et Tu? In The “To Kill A Mockingbird” Sequel, The New York Times Reports That Atticus Finch Has Feet Of Clay
Cal App: No Takings Claim, Because Property Owner Makes “Enough”

Continue Reading Eminent Domain Abuse, Coming To A Theater Near You

We’ve covered this topic before (see here, here, and here), but we haven’t heard much about it lately. But thanks to this new article by colleague Dwight H. Merriam, we can get back up to speed.

In “Eminent Domain for Underwater Mortgages: Already on the Way to the Bottom of the Sea of Bad Ideas,” from the Virginia State Bar’s Real Property Section’s journal, The Fee Simple (Spring 2015), Dwight discusses “the foreclosure crisis and how so many homeowners became victims of bad lending practices and a deep economic recession. Many are stuck in their homes, which are underwater with a value far below what was owed on them.” The article explores the question: can eminent domain bail out underwater mortgages?

Short answer: no.

To learn more, click here to view the article.

And what’s the latest that Richmond, California, which was leading the…

Continue Reading New Article: “Eminent Domain for Underwater Mortgages: Already on the Way to the Bottom of the Sea of Bad Ideas”

20150422_112618
The Hornes outside the Supreme Court

“Separate educational facilities are inherently unequal.”
Chief Justice Earl Warren,
Brown v. Board of Education

“The Fourteenth Amendment does not enact
Mr. Herbert Spencer’s Social Statics.”
Justice Oliver Wendell Holmes,
dissenting in Lochner v. New York

“…prejudice against discrete and insular minorities…”
Justice Harlan Fiske Stone, in footnote 4,
United States v. Carolene Products Co.

“Raisins … are a healthy snack.”
Chief Justice John G. Roberts,
Horne v. Dep’t of Agriculture

A Supreme Court win is a win, particularly by a margin of 8-1, so we’re not going to complain too much about the Court’s opinion in Horne v. Department of Agriculture, No. 14-275 (U.S. June 22, 2015), holding that the USDA’s requirement that raisin producers physically turn over a percentage of their yearly crops to the government without being provided compensation is a taking in violation of the Fifth Amendment.

I …

Continue Reading Horne v. USDA: Way More Than Silly Raisin Jokes

Readers know that some jurisdictions have statutes which permit private condemnations — actions in which the owner of a landlocked parcel can exercise eminent domain to take the property of a neighbor for access. They are somewhat like common law easements by necessity, and we’ve seen then in Pennsylvania (private takings still must serve a public purpose) and Colorado (condemning owner must have concrete development plans), for example. 

In Vise v. Pearcy Tennessee River Resort Inc., No. W2014-00649-COA-R3-CV (July 15, 2015), the Tennessee Court of Appeals reviewed that state’s private condemnation statutes and concluded they only allow use of the private condemnation mechanism to create access to a landlocked parcel, and do not allow an owner who already enjoys limited access to condemn a neighbor’s property to create “better” access.  

Pearcy’s parcel wasn’t completely landlocked, and dirt roads over a neighboring TVA-owned parcel allowed limited access. Another…

Continue Reading Tennessee Doesn’t Allow Private Condemnation For Better Access, Only To Create Access To Otherwise Landlocked Parcels

This opinion isn’t big news, but come on, it’s about two of our favorite topics (eminent domain and appellate jurisdiction), it’s short, and it’s from the Supreme Court of the Virgin Islands. How often do we get those? Plus, we’re just interested in how courts from fellow island jurisdictions rule.

Bottom line: in a quick-take action, a trial court’s order rejecting a property owner’s claim that the condemnor did not have the power of eminent domain is interlocutory, and is not immediately appealable. Go determine compensation, enter a final judgment, and then you can appeal the whole case. 

This doesn’t make much sense, practically. If the condemnor does not have the power to take the property, why should the parties incur the costs and delay in determining valuation? In our home island jurisdiction, a property owner is entitled by statute to calendar preference, and an immediate interlocutory appeal of…

Continue Reading USVI: No Appellate Jurisdiction For Quick-Take Ruling Until Eminent Domain Judgment Finalized