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Continue Reading Monday Round Up

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The Urban Lawyer, the law review published by the ABA Section of State & Local Goverment Law has published my article Recent Developments in Challenging the Right to Take in Eminent Domain, 42 Urban Lawyer 693 (Summer 2010). It summarizes several of the recent court decisions on public use and public purpose, although since the law review is published in hard copy, it does not include several of the most recent developments (for those, you will have to wait for next year’s article, or simply keep following this blog).

The Summer volume contains this and other articles with updates on environmental law, regulatory takings, land use and zoning, and municipal bond financing. For those of you who are SLG Section members, your copy of The Urban Lawyer is undoubtedly in the mail, and the pdf version will soon be available on the Section’s web site. For those of…

Continue Reading New Article: Recent Developments in Challenging the Right to Take in Eminent Domain

Last Friday, I was on the faculty of Integrating Water Law and Land Use Planning, a seminar on Hawaii’s unique water law.

My session covered “Water Rights, Property Rights and the Law of Settled Expectations,” and provided a crash course in Hawaii land use law, the interrelationship between land use law and water law, and the limitations of the public trust doctrine.

Hawaii Water Law And The Law Of Settled Expectations

Other sessions included “Hawaiian Water Rights – Where Culture and the Law Merge,” “Amendments to the Instream Flow Standards in East and West Maui,” and “County of Hawaii Water Use and Development Plan.” Also on the faculty were my Damon Key colleague Christi-Anne Kudo Chock; Dr. Lawrence Miike, Commissioner on the State Commission on Water Resource Management; and Lawrence Beck, Civil Engineer with the County of Hawaii Department of Water Supply. Dr.

Continue Reading Materials And Links From “Integrating Water Law and Land Use Planning” Seminar

Here’s your chance to be a well-known “eminent domain photographer.”

The ABA Section of State and Local Government Law will soon be publishing a Handbook on Eminent Domain, and is need of photographs to illustrate it. We’re looking for high resolution, not copyrighted pictures for the various chapters to illustrate “public purpose,” “inverse condemnation,” “pre-trial,” “trial,” “flooding and erosion,” “valuation,” and “damages.”

We’ve thought of appropriate illustrations for some on that list – e.g., a ball stadium for “public purpose, ” a limited-access highway under construction for “damages,” but the creative readers of this blog may have others. Illustrations from projects that you might have been involved in are one possible source (maps, plans, aerials, so it doesn’t necessarily have to be a photograph); high reso and not copyrighted are the primary criteria.

If you have material you’d be willing to share, send it to the book’s editor, Bill Schiederich…

Continue Reading Call For Eminent Domain Photos For Upcoming ABA Book

My Damon Key colleagues Mark Murakami and Tred Eyerly and I have posted our forthcoming essay Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches on SSRN here, containing our thoughts on Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010), the “judicial takings” case. Mark, Tred, and I filed an amicus brief supporting the property owners in the case.

Here’s an excerpt from the Introduction to the article:

Justice Breyer must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is such a thing as a…

Continue Reading Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches

My Damon Key colleagues Mark Murakami and Tred Eyerly and I have posted our forthcoming essay Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches on SSRN here, containing our thoughts on Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010), the “judicial takings” case. Mark, Tred, and I filed an amicus brief supporting the property owners in the case.

Here’s an excerpt from the Introduction to the article:

Justice Breyer must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is such a thing as a…

Continue Reading Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches

5330205_big My ABA State & Local Government Law colleague Andy Gowder has posted on his blog Grounded, a report and summary of the recent Miami panel discussion of Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights (Mar. 2010; $95 regular price; $75 for SLG members). 

Takings International is a comparative study of how 13 jurisdictions worldwide treat what we in the U.S. call “regulatory takings.” Visit this page for the Table of Contents and a pdf of Chapter I (scroll to the bottom of the page). Our book review is here.

I concur with Andy’s assessment that it was a fascinating and informative session (and I disclaim any bias resulting from the fact I served as moderator).

The panelists highlighted the issues discussed in the book, and Andy reports:

Professor Alterman began her remarks by pointing out that though no other country comes close to…

Continue Reading “Takings International” Panel Report

Cutting_edge_2009 One of the benefits of doing your own blog is that every now and then you are allowed to engage in a little shameless self-promotion (what’s this “every now and then?”).

Well, here goes.

The ABA has announced the forthcoming publication of a new book by the State and Local Government Law Section: At the Cutting Edge 2009: Land Use Law from The Urban Lawyer, edited by my colleague Dwight H. Merriam, and which features “[a] compilation of the most recent Section of State and Local Government Law committee reports from The Urban Lawyer.”

What this means is that it contains topical and timely articles about the hottest topics in land use law, including exactions and impact fees, green building laws, ethics in land use, regulatory takings, citizen participation in public hearings, and public use and pretext in eminent domain (the piece I authored).

Here’s the Table …

Continue Reading New Book: At the Cutting Edge 2009: Land Use Law from The Urban Lawyer

Statelocalcover_1_2010_small The most recent edition of State & Local Law News has an article summarizing the arguments in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). 

That case, which has been argued and is currently awaiting disposition by the Supreme Court, asks whether a state court is constrained by the Takings and Due Process clauses from rewriting the common law rules of property. [Disclosure: we filed an amicus brief in the case supporting the property owners.]

In Drawing a Line in the Sand: Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Protection, six authors of amici briefs in the case — including me — summarized their arguments. I focused on the “background principles” issue, and the notion that certain common law aspects of property are beyond the reach of state court redefinition:

The “judicial takings” question in…

Continue Reading New Article On Florida Beach Judicial Takings Case

Each summer, The Urban Lawyer (the ABA’s Section of State and Local Government Law‘s peer-reviewed law review), devotes an issue to recent developments in various areas of law. A subscription to the journal, which is published each quarter, is among the benefits of section membership. The just-published Summer 2009 issue includes my article on recent developments in public use and pretext in eminent domain, which I have creatively titled Recent Developments in Public Use and Pretext in Eminent Domain (43 Urban Lawyer 563 (2009)).

If that’s not descriptive enough, here’s a summary of the article:

The Supreme Court’s controversial 5-4 decision in Kelo v. City of New London renewed both public and judicial interest in the contours of the public use requirement of the Fifth Amendment and its counterparts in state constitutions. Courts began to take a harder look at how the government’s claim that property is being condemned…

Continue Reading New Article: Recent Developments in Public Use and Pretext in Eminent Domain