November 2019

We’re on the road early tomorrow for another visit to SCOTUS with our William and Mary Law School class. We hope to get in for the arguments in the Maui Clean Water Act case. Last year, we attended the first Knick arguments in October, and we wanted to repeat the experience for this year’s students.

Yeah, we know that technically, the CWA case does not involve property or takings. But come on, it’s all we’ve got on the docket right now, and the case is very important to property owners who — if Earthjustice’s arguments are accepted by the Court — will only know if they are liable under the Clean Water Act for not getting a permit after they don’t get a permit. As we see it, the linkage test the respondent has advanced means that if a connection between a no-permit point source of pollution and waters…

Continue Reading Road Trip SCOTUS: Maui Clean Water Act Oral Arguments (11/6/2019)

We think the Connecticut Supreme Court’s opinion in Mayer-Whitman v. Zoning Board of Appeals, No. SC 19972 (Nov. 5, 2019) is worth a read, even if it does not break new ground, because it does a good job of explaining some basic principles. 

Quick story: Breunich had a house. It didn’t conform to height, setback, and flood area requirements. That’s because it was build prior to the regulations were adopted. Dirt lawyers call this a “nonconforming use.” Civilians call it being “grandfathered.” Hurricane Sandy damaged the house, but the cost of repairs was more than 50% of the home’s value. And you know what that meant: Breunich could not rebuild without a variance.

He applied for a variance to rebuild the home in pretty much the same configuration it was before, asserting hardship because it would be impossible for the building to conform to both the height above-flood requirements…

Continue Reading Connecticut: “Hardship” For Variances Means Inverse Condemnation

Registration underway, so come join us! Agenda full of hot topics in takings and appraisal law! The best national faculty! Renew friendships, and make new colleagues! And Nashville! 

Download the brochure and make your plans for January. (Don’t wait, we’ve sold out the past three years.)Continue Reading Register Now! ALI-CLE Eminent Domain And Land Valuation Litigation Conference (Nashville, Jan 23-25, 2020)

Dad was from upstate New York. More correctly, a town literally in both New York and Vermont (the state line runs right through the middle of the burg). His mother’s family were old time rural Vermonters, and he shared many of the stereotypical traits of his people – solid, self-reliant, taciturn. Many questions answered solely with a “yup” or “nope.” 

Romaine Tenney was one of those classic Vermonters. He entered the pages of history more than fifty years ago when, in reaction to the taking of his farm for Interstate 91, he burned his house and farm buildings down, and shot himself. He had nowhere else to go. As author Howard Mansfield puts it:

Tenney was that farmer by the road tourists used to stop and talk to as they sought out a specific kind of Vermont experience.

“Romaine himself, personally, he never went to town meeting, he didn’t write…

Continue Reading A Permanent Memorial To Romaine Tenney, Vermont Eminent Domain Victim