2023

40th ALI-CLE

We were eagerly anticipating 40th American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference. The 2022 Conference in Scottsdale was one of the first meetings where everyone was back in-person (and was a smashing success), but that conference was early in the game so not everyone could or would attend. But in the past year most of us got back to some semblance of “normal,” and the turnout promised to be good.

We had record registrations: with over 300 attendees, faculty, and staff signed up, things were shaping up.

Plus, we were headed to Austin, Texas. The last time we held the Conference there in 2016, we loved it so much it has been in-demand for a return visit. And this year is the debut Conference for some new planning co-chairs for both the main tracks as well as the “Condemnation 101” tracks, so the buzz for the…

Continue Reading Ice Ice Baby: A Report From The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

Here’s the latest in a case we’ve been following since its inception.

The U.S. Court of Appeals for the Second Circuit has affirmed the Eastern District of New York’s 12(b)(6) dismissal of a complaint alleging that New York (state)’s sweeping amendments to its Rent Stabilization (rent control) statute effected physical and regulatory takings.

First, this can’t be a surprise to anyone who has been paying attention to how courts treat rent control. Putting aside for a moment the legal theories and the various challenges, rent control has become so ossified — such a political third-rail and sacred cow — that courts are very reluctant to do anything to upset the system, and will approve most any ratcheting-up of the restrictions. Any challenger, whatever the logic of their legal theory, has to recognize that they start off in a very deep hole.

That said, let’s take a look at…

Continue Reading CA2, Pellucidly:* You Let ‘Em In, Property Owners, So New York Can Tell You To Keep ‘Em (Part I)

LUI

Land users: come join us online for the 36th Annual Land Use Institute. Yes, the venerable program is back again, with the usual line up of dirt law experts covering all you need to know and bringing you up to speed on the latest. Here’s the description of the program:

This Annual Land Use Institute program is designed for attorneys, professional planners, and government officials involved in land use planning, zoning, permitting, property development, conservation and environmental protection, and related litigation. It not only addresses and analyzes the state-of-the-art efforts by government to manage land use and development, but also presents the key issues faced by property owners and developers in obtaining necessary governmental approvals.

This outstanding program features:

• Preeminent faculty of practitioners and academics who provide nationwide perspective without losing sight of state-specific issues.
• Critical review and analysis of the most important new cases;
• Practice-oriented discussion…

Continue Reading We’re Remote, So It’s Easy To Join Us For The 36th Annual Land Use Institute

PXL_20230201_135536548.MP
Property Rights – Eminent Domain
(and where to find them on the interwebs)

Count me surprised and touched: when I wore the prototype of our new inversecondemnation.com fleecy swag vest at the recently-completed — and very icy — ALI-CLE Eminent Domain & Land Valuation Litigation Conference in Austin (see below), quite a few of the folks in attendance asked me where they might obtain one for themselves.

PXL_20230201_170706642
When this is what greets you when you arrive at the
Conference site, you know you need
some fleecy swag

Because it is logo wear, the vest is one of those things that I’d prefer to give away. After all, isn’t the whole point of logo swag to promote the thing so logo’d? To spread the word, or show your affiliation, or promote the brand, or something? To make people pay for the privilege of promoting the blog just doesn’t seem quite right.

Continue Reading Would You Like A Fleecy Inversecondemnation.com Swag Vest? If So, Here’s How To Get Yours

Screenshot 2023-02-07 at 09-17-30 Emerging Issues in Property Rights

Join our Pacific Legal Foundation colleagues Jon Houghton, Daniel Woislaw, Kady Valois, and Sam Spiegelman (moderating) tomorrow, Wednesday, February 8, 2023, at 3:00 – 4:00 p.m. ET for a free webinar, “Emerging Issues in Property Rights.”

Here’s the agenda:

Protecting private property rights has been at the heart of PLF’s work since our founding in 1973. Our view, and that of the American Founders, is that property rights are foundational to all other constitutional rights.

Our relentless defense of property rights has secured many precedented victories, including 12 property rights wins at the U.S. Supreme Court—and counting.

Unfortunately, even today, the need for property rights champions remains critical.

Government officials too often relegate property rights to second-class status among Americans’ constitutional rights—cloaking their assaults in erroneous assertions of environmental protection or cleverly constructed land use restrictions.

To learn more about property rights’ legal landscape in…

Continue Reading “Emerging Issues In Property Rights” – Wednesday, February 8, 2023, 3-4pm ET (Free!)

You remember, don’t you? In the early days of the Co-19 epidemic, government and public health authorities were scrambling to do something … sometimes anything! … to respond.

Dare County, North Carolina might have been one of those local governments that went maybe just a bit too far in the precaution vs effectiveness departments: it banned nonresident property owners from entering the county (and apparently didn’t ban anyone else from coming and going, only outsiders).

Dare County announced the restrictions on March 16 and implemented them over three phases. Phase one, which took effect immediately, declared a state of emergency and prohibited mass gatherings. Phase two, which took effect one day later, prohibited non-resident visitors from entering the county. Phase three, which took effect four days after the restrictions were announced, prohibited non-resident property owners from entering the county. In effect, Dare County told non-resident property owners: “If you…

Continue Reading CA4: Being Blocked From Accessing Your Beach House For 45 Days Isn’t A Physical Taking (Or Any Kind Of Taking)

Screenshot 2023-01-28 at 11-23-31 Are zoning laws the cause of Hawaii’s housing crisis (Oahu)

Here’s your chance to spend some time with the author of one of the hottest land use and public policy books out there, Nolan Gray.

RSVP now (admission free, but space is limited) to join our Land Use class when we welcome Mr. Gray to respond to the question in the title of this post. Details:

Date: Wednesday, February 15, 2023

Time: 5:30pm – 7:00 pm, Hawaii Time

Location: University of Hawaii Law School (2515 Dole Street, Honolulu), Classroom #3.

Cost: Free, courtesy of Grassroot Institute of Hawaii

RSVP: You must register here to reserve your place in the room.

Parking: modest fee, available at the adjacent UH parking structure.

As we noted when we featured his book “Arbitrary Lines: How Zoning Broke the American City and How to Fix It” (Island Press 2022) at the top of our dirt lawyer holiday gift guide recently, his work…

Continue Reading Hey Honolulu, RSVP To Join Us: Nolan Gray, “Are zoning laws the cause of Hawaii’s housing crisis?” Feb 15 @5:30, U.H. Law School

If your first reaction to the Texas Court of Appeals (First District)’s decision in City of Houston v. The Commons of Lake Houston, Ltd., No. 01-21-00369-DV (Jan. 12, 2023) is scratching your head, then please come join us in bewilderment.

After all, the court held that a takings claim failed because the city is immune from inverse condemnation. Say what? We thought that the self-executing nature of the just compensation requirement of the U.S. Constitution (and the Texas Constitution) means that claims of sovereign immunity don’t hold water in inverse cases.

The Commons wants to develop “The Crossing,” one of those big master-planned communities. The usual development activities entailed: master plan, subdivision plats, city approvals for infrastructure, and even some actual site work. “By April 2018, The Commons had invested millions of dollars in planning and infrastructure for The Crossing.” Slip op. at 2.

But in…

Continue Reading An Ordinance Isn’t A Taking Because It’s A Valid Exercise Of Police Power?: What The Heck Is Going On In The Texas Court Of Appeals (First District)?

We’re not suggesting you read the entire majority and dissenting opinions from the U.S. Court of Appeals for the Eleventh Circuit in Landcastle Acquisition Corp. v. Renasant Bank, No. 20-13735 (Jan. 12, 2023). After all, together they comprise 126 pages (yikes!). And the case isn’t our usual fare, but “arises out of the insolvency of the Crescent Bank and Trust Company (“Crescent”) and the conduct of its customer-lawyer Nathan Hardwick[.]” Slip op. at 1.

So what gives, inversecondemnation?  

We’re posting it because of the back-and-forth between the majority and the dissenting judge (Pryor, C.J., which begins on page 80 of the slip copy) on a takings question that cropped up.

We say “cropped up” because, as the majority argues, the dissent’s takings discussion “strays so far afield from the narrow” issue presented in the case that it proves to be a “false alarm.” Slip op. at 51. Thus…

Continue Reading CA11: Majority’s Response To Dissent’s Claim That After Butch Cassidy Defaults, FDIC’s Receivership Is A Taking: “Oh my goodness”