January 2019

Those of you interested in the ongoing debate about vacation rentals (aka TVR’s) (in Honolulu, the minimum period a property owner can rent in a residential district under the zoning code is 31 days, unless the owner possesses a nonconforming use permit) should read the Hawaii Intermediate Court of Appeals’ published opinion in Dao v. Zoning Board of Appeals, No. CAAP-15-565 (Jan. 31, 2019).

You should read the opinion even though it contains a whole lot of detail, because it not only details the applicable law, but also how the City and County of Honolulu Department of Planning and Permitting goes about investigating and prosecuting violations of the ordinance. Let’s just say that the court wasn’t too impressed with the Department’s methods.

The property owner, Mr. Dao, was cited multiple times for renting to tenants for less than the required 31 days. Neighbors dropped dime (this is the source…

Continue Reading Hawaii App: Slipshod Investigation By Planning Department Cannot Support Vacation Rental Citation

Our Owners’ Counsel colleague John Hamilton deserves kudos for the Kansas Supreme Court’s recent decision in Nauheim v. City of Topeka, No. 114271 (Jan. 25, 2019).

The case is about a subject often overlooked, relocation benefits. In this case, the condemning agency’s duties under the Kansas statute which dictates their duties towards a “displaced person.” The usual case is where the owner or tenant has to move because of condemnation. The twist here was that the property owner negotiated a purchase under the cloud of eminent domain and the City never had to actually exercise its condemnation power. The tenants who were forced to relocate sought — but were denied — relocation benefits under the statute, as “displaced persons.”

The Kansas statute provides that when “federal funding is not involved” (which it was not here), “and any real property is acquired … through negotiation in advance of a condemnation…

Continue Reading Kansas: Tenant May Be Entitled To Relocation Benefits In Voluntary Acquisition If There’s Evidence That City Intended To Condemn If Deal Fell Through

The “Flint water crisis,” which, as the opinion of the Michigan Court of Appeals in Gulla v. State of Michigan, No. 340017 (Jan. 24, 2019), noted, is “the contamination of
plaintiffs’ water supply and their exposure to toxic and hazardous substances,” is all over the front pages. Which means it also spawned lawsuits.

The plaintiffs raised several claims across several cases, alleging (among other claims) inverse condemnation. In one series of cases, the defendants sought dismissal, arguing that the facts as alleged would not support takings liability. In the other, the court denied the defendants summary judgment. The court of appeals consolidated the appeals.

This is an unpublished opinion, so there’s not a whole lot of controversy or deep analysis by the court. But it is still worth reading because the court considered (and rejected) the defendants’ immunity argument. And the opinion gives a good rundown of Michigan takings…

Continue Reading Mich App: Flint Water Plaintiffs Stated An Inverse Condemnation Claim

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Here is our annual “proof of life” photo, taken from the dais during the opening session, to prove that all 250 of us were in the room for the ALI-CLE Eminent Domain Conference, and not out on a Palm Springs golf course (it is 72º and sunny, so a golf course would not be a bad place to be).  

Here are the links from our talk this morning (along with Amy Boulris) about the latest issues to watch in eminent domain:

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Continue Reading Wish You Were Here: Links From Day 1, 2019 ALI-CLE Eminent Domain And Land Valuation Litigation Conference

With the opinion in the Knick v. Township of Scott case to drop as soon as Tuesday (we’re guessing the opinion will be by Chief Justice Roberts, by the way), hold on. We’re about to get super nerdy here. Impossibly nerdy. Yes, we’re revisiting the Star Trek analogies. We’ve been down this road before, even going so far as to have a colleague (who is perhaps even further down the rabbit hole than we are) present a takings CLE in his Starfleet uniform. 

The bottom line is this (and if you are not into Trek, you can stop right here): to us the key question which the Court is grappling with is whether a state’s judiciary is part of the state’s compensation system. If the majority of the justices conclude that it is, then don’t expect an out-and-out overruling of Williamson County, only a modest trim…

Continue Reading Shaka, When The Walls Fell: Knick Is Going To Be About Federalism, Not Takings

Psweather

If you didn’t register to attend the 36th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference later this week in Palm Springs, California, well then, shame on you!

According to the National Weather Service, while you and the rest of the country is freezing, we’ll be enjoying the balmy desert climes, and discussing the topics we love: eminent domain, redevelopment, relocation, regulatory takings, trial and appeal strategies, doctrinal changes on the horizon, hot topics (border wall, pipelines, wildfires, and flooding), and others. 

Featuring a national faculty (many new to the ALI-CLE dais), and attendees from the entire spectrum of practice, academia, and the bench. 

If you are not joining us, be sure to follow along on the blog (we will post updates daily), and on Twitter (@invcondemnation, @ALI_CLE #EminentDomain2019). And plan on joining us in 2020, when we’ll be in a new city (by…

Continue Reading ALI-CLE Palm Springs (72º, Sunny) Here We Come

Pay special attention to Justice Breyer’s questioning of Ms. Knick’s counsel, Dave Breemer. Yes, oral argument is the Court’s time to do with as it wishes, but was Justice Breyer actually trying to get at anything, or just running out the clock with a questions that didn’t seem to have any point. Does he really think that lawyers for municipal governments actually have the type of conversations that he was alluding to? Really? 

Also, if you can’t stream the above, go to the Supreme Court’s audio page for the Knick case and download the sound file directly.  Continue Reading Knick Oral (Re)Argument Recording Available

There’s been a lot written after the Supreme Court heard (re)arguments earlier this week in Knick v. Township of Scott, No. 17-647, most of it helpful in understanding what issues the Justices are considering, and how each of them might break on the ultimate question: should Williamson County be overruled, and should property owners who allege that a local government has taken their property be able to press their claim for just compensation in a federal court? 

Here’s what we’re reading on the subject:

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Continue Reading Knick Post-Argument Round Up

CERTDENIED

In case you have been following along, you can take these four cases off your watch list:

  • Leone: Hawaii Supreme Court concluded that holding property that has no present use in the hope that someday in the future the government might rescind the use-restrictive regulation, is “investment use,” and therefore no taking. 
  • Kelleher: Palazzolo revisited – if the owner purchased the property with the allegedly restrictive regulation already in place, does the owner lack investment-backed expectations of use? 
  • Colony Cove: Ninth Circuit voided a jury verdict in a Penn Central takings case in favor of the property owner, concluding that mere cash losses (even though the loss was millions of dollars) was not enough to support the verdict, because the overall value of the property didn’t decline substantially. 
  • St. Bernard Parish: The MR-GO case. The Federal Circuit concluded the Government cannot be liable for a taking

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Continue Reading Cert Denied, Denied, Denied, Denied In Reg Takings Cases

Don’t Miss the 2019 Eminent Domain Litigation Conference from American Law Institute CLE on Vimeo.

Check out this sound blurb, produced by the good media folks at ALI-CLE, about the upcoming Eminent Domain and Land Valuation Litigation Conference. (And no, we didn’t record this in a jazz club; although I wish we had.)

There’s still time to register, and come and join us in Palm Springs. Continue Reading Hot (Eminent Domain) Topics, Cool Jazz