2015

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”

Hardly seems like a decade ago that the Supreme Court gave us eminent domain lawyers something to talk about at cocktail parties: the Court’s infamous and widely-hated decision in Kelo v. City of New London. 

Find out about what the intervening ten years has brought us from the Cato Institute, which is sponsoring a program later this week  about “Property Rights on the 10th Anniversary of Kelo v. City of New London.” 

Featuring Ilya Somin, Author, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, and Professor of Law, George Mason University School of Law; Scott Bullock, Senior Attorney, Institute for Justice and Plaintiffs’ Counsel, Kelo v. City of New LondonKelo v. City of New London

The full agenda and registration information is here. If you can’t be in D.C. this week, you can watch the conference live…

Continue Reading Upcoming Conference On Kelo’s 10th Anniversary

Honchariw v. County of Stanislaus, No. F069145 (June 3, 2015), is one especially for you Californians, addressing the somewhat unusual process under state law for challenging a land use action by local government which is claimed to take property.

Under the California Supreme Court’s decision in Hensler v. City of Glendale, 876 P.2d 1043 (Cal. 1994), before a landowner can seek just compensation for a regulatory taking, it must first challenge the validity of the action using the writ of mandate procedure (administrative appeal to all you non-Californians), to allow the agency the chance to rescind the act. The property owner may — but need not — join to the writ of mandate a claim for damages (just compensation), and raise the claims concurrently.

Sometimes plaintiffs do join both claims in a single complaint, sometimes they don’t. Hensler is considered an exception to the usual rule prohibiting…

Continue Reading Cal App: Mandamus Challenge To Validity Of Govt Action Must Include Takings Claim

Third time around for Lost Tree’s takings case against the federal government on this blog.

The first was the Federal Circuit’s decision concluding that a single Florida parcel owned by the plaintiff was the relevant parcel against which the impact of the Corps of Engineers’ denial of a § 404 wetlands dredge and fill permit is to be measured. The court overturned a Court of Federal Claims decision which concluded the relevant parcel was that single plot plus an additional nearby lot, plus “scattered wetlands in the vicinity” also owned by the same owner. 

Second was the Court of Federal Claims, which on remand held that there was a taking, and that, after applying either the Lucas total wipeout or the Penn Central ad hoc test (the diminution in value caused by the denial of the permit was 99.4%), the just compensation owed to Lost Tree was in the neighborhood…

Continue Reading Fed Cir: “Economically Beneficial Use” Means More Than Someone Might Buy The Property

Here’s the latest in a case we’ve been following, a takings claim against the federal government which was dismissed by the Federal Circuit under 28 U.S.C. § 1500, the statute which deprives the Court of Federal Claims of jurisdiction over a case if a related case is pending in another court at the time the CFC complaint is filed.

The core issue is one we’ve dealt with extensively before, and which the Supreme Court dodged in in United States v. Tohono O’odham Nation, 131 S. Ct. 1723 (2011), namely, whether § 1500’s jurisdictional bar 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 that case, arguing that the statute cannot be read to deprive takings plaintiffs of their right to secure just compensation, when they may be required…

Continue Reading New Cert Petition: Revisiting Tohono And § 1500 In Federal Takings Claims

Here’s a recent piece from Richard Borecca, the Honolulu Star-Advertiser’s political reporter, about the Texas reapportionment case recently set for full briefing and argument by the U.S. Supreme Court.

“In Hawaii, eligible voters count more than people” is behind a partial paywall, but here’s the key points in the event you are not a subscriber:

  • Hawaii has never counted the entire census-counted resident population for purposes of apportioning its state legislature. It has always relied on a method that somehow excludes active duty military and their families who reside in Hawaii from the reapportionment count. 
  • Hawaii is one of two states which does not base reapportionment on total census-counted population (Kansas being the other). 
  • When voter registration and participation was high in the years following statehoood in 1959, Hawaii counted registered voters, which due to the high percentage of Hawaii residents who registered to vote, was an accurate

…
Continue Reading Star-Advertiser: Hawaii “Is Exception To Constitutional Law” In State Reapportionment

Last week, the Hawaii Supreme Court heard oral arguments in Sierra Club v. Castle and Cooke Homes Hawaii, Inc., No. SCAP-13-0000765, a case involving a challenge by the usual suspects to a State Land Use  Commission “boundary amendment” (aka state “rezoning” to those of you not familiar with Hawaii’s top-heavy state land use planning scheme). 

According to the Judiciary web site summary of the case, here are the issues:

In this case, Appellants Sierra Club and Senator Clayton Hee appeal from the Decision and Order of the Circuit Court of the First Circuit, which denied and dismissed their appeal from the Land Use Commission’s Findings of Fact, Conclusions of Law, and Decision and Order, which approved Appellee Castle & Cooke’s Petition for District Boundary Amendment. The Land Use Commission reclassified approximately 769 acres of Castle & Cooke’s land from the state agricultural land use district to the state…

Continue Reading Guest Post: HAWSCT Oral Arguments In Koa Ridge – Is The State Prohibited From Rezoning “Potential” Important Ag Land?

For those of you who are members of the ABA Section of State and Local Government Law’s Land Use Committee (if you aren’t, you can become a member easily; just ask me how), please tune in on June 12, 2015 for our monthly teleconference.

Here’s the announcement:

Our third meeting is scheduled for Friday, June 12, 2015 at 2:00 pm EDT, and we will be featuring as our speaker, Robert Thomas, a land use lawyer and publisher of the law blog inversecondemnation.com (who is also the Chair of the Section’s Eminent Domain Committee) who will present a 20 minute program about the key takings case now awaiting decision by the U.S. Supreme Court, Horne v. United States Dep’t of Agriculture. 

FREE Teleconference Sponsored by the Land Use Committee
Friday, June 12, 2015
2:00 p.m. EDT
Dial-in 888-3967955
Passcode 797687#

Everything a Land Use Lawyer Needs To Know About …

Continue Reading Mark Your Calendars June 12, 2015: Free ABA Teleconference “Everything a Land Use Lawyer Needs To Know About Dancing California Raisins: A Report From the Oral Arguments in Horne v. USDA”

As we recognized earlier this week when the U.S. Supreme Court noted probable jurisdiction in a redistricting case out of Texas, Hawaii’s current approach to state legislative reapportionment — under which the Hawaii Reapportionment Commission does not count active duty military, their spouses and children, and university students who pay non-resident tuition (108,000, or nearly 8% of the census-counted population were expressly excluded from representation in the Hawaii Legislature) — seems like it is back in play, even if a three-judge U.S. District Court ruled in 2013 that the scheme was constitutional, a decision that was summarily affirmed by the U.S. Supreme Court.

The Wall St. Jounal Law Blog today posts “Hawaii Military Carve Out May Play Role in Voting District Case,” noting:

Hawaii may figure prominently when the Supreme Court this fall considers a case where plaintiffs are seeking to have legislative districts drawn based on…

Continue Reading WSJ Law Blog: “Hawaii Military Carve Out May Play Role in Voting District Case”