2017

Winter storms damaged a seawall which protected a blufftop, oceanfront home. The owners, not surprisingly, wanted to rebuild the wall to protect their home. The Coastal Commission, as is its wont, saw this as an opportunity to extract some goodies from the owners. So it granted a limited-term permit to rebuild the wall, conditioned on the owners not repairing a stairway leading from the top of the bluff to the private beach:

Ultimately, the Commission approved a coastal development permit allowing seawall demolition and reconstruction, with the addition of midbluff geogrid protection below Lynch‟s home. The permit was subject to several conditions, three of which are at issue here. Special condition No. 1(a) prohibits reconstruction of the lower stairway. Special condition No. 2 provides that the seawall permit will expire in 20 years and prohibits future blufftop redevelopment from relying on the seawall as a source of geologic stability or…

Continue Reading California Supreme Court: Accept The Exaction, Or Let Your Home Fall Into The Sea – Your Choice

Here are links to the cases and materials we spoke about today during our portions of the APA’s 2017 Planning Law Review webinar:

…
Continue Reading Cases And Links From Today’s American Planning Association’s 2017 Planning Law Review

SLG-Invitation-Chair-Reception-NYC-8-11-2017

If my colleagues don’t wise up and change their minds before August, I am slated to become Chair of the ABA’s Section of State and Local Government Law (which, by the way, includes an Eminent Domain Committee, Chaired by Howard Roston, and co-Chaired by Kelly Walsh and John Peloso). On Friday, August 11, at the ABA Annual Meeting in New York City, we’ll be having a party to celebrate, and you are invited. 

Earlier that day, our Section is producing a CLE session about the US Supreme Court’s recent decision in Murr v. Wisconsin, “Murr and Beyond: Implications for Regulatory Takings,” featuring two of the arguing counsel in the case (John Groen (PLF), and Misha Tseytlin (Wisconsin SG), and commentary from me and Nancy Stroud (FL). Judge (ret.) Peter Buschbaum (NJ) is moderating. We’ll not only try and figure out what the majority did in Murr,…

Continue Reading Friday, Aug 11, 2017, New York City: Chair-Elect Reception, Unpacking Murr – ABA State & Local Govt Law Section

There’s a lot of buzz about “what’s next” after Murr v. Wisconsin, and what this case may augur for regulatory takings. There are already quite a few discussions and analysis panels scheduled, including these three in which we’re participating:

…
Continue Reading Your Post-Murr Reading List

Here’s the opinion of the Connecticut Supreme Court in a case we’ve been following, Barton v. City of Norwalk, No. SC 19671 (July 4, 2017). 

As we noted in our earlier post where we detailed the facts, the case involved two non-contiguous parcels, one of which was used for a parking lot which the City later condemned to build a police station. The parking lot had provided parking for the commercial building on the other parcel (the City had required the owner to build the lot, after the City curtailed street parking). In the eminent domain case taking the parking lot, the owner claimed damage to the commercial operation and lot, but the court prohibited evidence of that damage.

So the owner instituted a separate inverse condemnation claim, seeking recovery for damage to the commercial operation and lot caused by the loss of parking across the…

Continue Reading The Connecticut Supreme Court “Gets” The Larger Parcel Issue: It’s About Joint Use Of The Two Parcels

If you are within striking distance of Madison next month, consider attending the “Property Rights and Land Use in Wisconsin” symposium at the U. Wisconsin Law School. 

This is a one-day conference, and as you might expect, one of the big focuses of the day will be the U.S. Supreme Court’s decision in Murr v. Wisconsin. The speakers will also cover legislative developments, as well as the Wisconsin Supreme Court’s decision in McKee v. Fitchburg (which reminds us to get this opinion out of our queue and onto the blog, which we will do shortly). 

Register here (a very modest $100 for the entire day). 

Brochure, U. Wisconsin’s “Property Rights and Land Use in Wisconsin” Symposium (July 20, 2017) 

Continue Reading U. Wisconsin Property Rights & Land Use Symposium (July 20, 2017)

IMG_20170629_100649

Earlier this year, I had the honor of moderating a panel speaking about transportation sharing legal issues at the University of Hawaii Law Review‘s sharing economy symposium. The editors have been hard at work since, and the symposium issue is being printed as we speak.

They also permitted me to pen this little missive, a short essay in which I discuss several recent cases about transportation sharing to illustrate what I see as one of the problems with how regulatory takings claims are framed. 

This essay will review several cases which the sharing economy has thus far produced, cases where taxicab companies have sued municipalities for allowing ridesharing services to operate without medallions, most often employing a regulatory takings theory. I argue that the approach employed by these courts wrongly focus on the property interests involved, rather than where the real analytical question resides: what are the investment-backed expectations…

Continue Reading New Article: “Property” And Investment-Backed Expectations In Ridesharing Regulatory Takings Claims

IMG_20170627_123314 (1)

So how does a property lawyer salve the wounds of the last few days, which saw a really bad Supreme Court ruling in a regulatory takings case, and shortly thereafter the justices deny review of your just compensation petition while you just happen to be in Los Angeles, California?

Langer’s Deli, that’s how. 

IMG_20170628_103746

First, some background.

Many years ago, when my mother was still alive, she resided in Honolulu at an assisted living place. Very nice it was, and it allowed her to remain independent much longer than she might otherwise have been able to alone, and in my estimation probably added 10 years to her life. One of her fellow apartment owners was Robert Corn, a lawyer who had retired from his long career as a senior deputy District Attorney in (and for) the County of Los Angeles.

When he learned I too was a lawyer, we’d…

Continue Reading The Larger Parcel, Eminent Domain, And The World’s Best Pastrami Sandwich

After Murr, the pending cert petition in Lost Tree was D.O.A., and today, the Court made it official. Cert denied. We thought that the Federal Circuit’s denominator analysis was the better one (although pretty much anything would have been better than what Justice Kennedy and his Immortals came up with in Murr). But since Lone Tree was a property owner win in the Federal Circuit, cert denial isn’t a bad thing.

The denial also let stand the Federal Circuit’s (correct) rule that it isn’t an economically beneficial use when the only use left after a regulation is that the property may recover its value some time in the future (aka “investment value”). This blows significant holes in the government’s common argument that the regulation isn’t a wipeout or a significant loss under Penn Central, because property usually rises in value so one day, the economic impact…

Continue Reading Cert Denied In Lost Tree (Relevant Parcel)

IMG_0006

Here’s the Honolulu Star-Advertiser latest story on the Honolulu rail authority’s condemnation of the property of Blood Bank of Hawaii, “Blood bank sues over city push to take land for rail.” 

The state’s lone blood supplier is pushing back in court against the city’s efforts to acquire the land fronting its Dillingham Boulevard offices for rail.

In a countersuit filed Thursday, the Blood Bank of Hawaii accuses the Honolulu Authority for Rapid Transportation of acting “in bad faith” and “recklessly subjecting Hawaii’s blood supply to grave but unnecessary risks.”

It further questions the benefit of taking the parcel when the city still lacks the funds to build the full 20-mile line to Ala Moana Center.

Full details here, in our Answer and Counterclaim. 

Blood Bank Counterclaim by Honolulu Star-Advertiser on Scribd

Continue Reading Not Satisfied With Merely Taking Land For Rail, Now The City Wants Blood