Development agreements

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Another date to save on your calendar: the 2014 Conference of the International Academic Association on Planning, Law, and Property Rights will be held from February 11-14, 2014 in Haifa, Israel, at Technion-Israel Institute of Technology. The Conference will include the usual presentations, plus day-long workshops, and excursions. You don’t need to be a PLPR member (although joining is free), nor do you have to be an “academic.”

We attended the 2013 PLPR Conference in Portland, and it was well worth it. The message of PLPR is “Planning matters. Law matters. Property matters,” and the 2013 Conference delivered, with presentations on those topics with an emphasis on international practices.

The 2014 event is chaired by Professor Rachelle Alterman, who, among other accomplishments, edited Takings International (2010), a book our ABA Section published that is a comparative study of how what we call regulatory takings are treated worldwide.

Continue Reading 2014 Planning, Law, And Property Rights Conference – Haifa

Today, the Supreme Court issued its opinion in Koontz v. St Johns River Water Mgmt District, No. 11-1447 (cert. granted Oct. 5, 2012), holding that the nexus and proportionality standards apply to government demands for money as well as land, and that a property owner need not accept the permit in order to challenge it.

Opinion here. This is the third and final takings case the Court considered this term, which asked whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.

Disclosure: we filed an amicus brief in the case, in support of Mr. Koontz.

Here’s our thoughts on the oral arguments. More, once we have a chance to digest the opinions in detail.

Koontz v. St. Johns River Water Management District, No. 1101447 (June 25, 2013)

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Continue Reading SCOTUS On Exactions: Nollan/Dolan Apply

Mostly mising from all the anticipation over the Supreme Court’s “blockbuster” cases on same sex marriage, voting rights, and affirmative action, is the Court’s third takings decision of the term, Koontz v. St. Johns River Water Management District. Professor Ilya Somin primes the pump in this post, “Still Waiting for the Koontz Decision,” which includes links to other prognostications, including an interesting (possible) insight from lawprof Josh Blackman.

We’re also in the final planning stages for the July 12, 2013 ABA webinar on Koontz and Horne, “Supreme Court Takings: A First Look at Koontz and Horne.” Make plans and join us for a discussion of these cases by our panel of expert scholars (Professors David Callies [Hawaii] and Michael McConnell [Stanford, also arguing counsel in Horne]), and practitioners (my State and Local Government Law Section colleagues Andy Gowder and Michael Kamprath). Continue Reading Waiting For Koontz

Mark your calendars: On August 14-16, 2013, ALI-CLE is putting on the annual Land Use Institute. It’s in San Francisco, which is very convenient for those who may be attending the ABA Annual Meeting the week earlier. A good excuse to stay longer.

The Land Use Institute, now in its 29th year, is designed for attorneys, professional planners, public officials, developers, and academics who are involved in land use planning, zoning, permitting, property development, environmental protection, and related litigation. This cutting-edge program, comprising 16 hours of instruction, including one hour of ethics, and taught by preeminent practitioners, academics, and government officials, has well-earned its role as the most comprehensive land use continuing education program available.

Not only does the program provide critical reviews and analyses of the most important new cases, nationwide trends, state-specific concerns, and both routine and complex procedural issues, but it also offers outstanding networking opportunities…

Continue Reading Upcoming ALI-CLE Conference: Land Use Institute – Planning, Regulation, Litigation, Eminent Domain, and Compensation

Update: Professor Ilya Somin, a leading eminent domain scholar and author of the definitive articles on post-Kelo reforms, adds his thoughts on the decision here. Here’s a report from the local paper.

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In the wake of Kelo v. New London, 545 U.S. 469 (2005), a majority of states adopted rules about what constitutes a “public use” in eminent domain. Missouri is one of the states that, by statute, now prohibits takings “solely” for “economic development” purposes:

1. No condemning authority shall acquire private propertythrough the process of eminent domain for solely economic developmentpurposes.

2. For the purposes of this section, “economic development” shall mean ause of a specific piece of property or properties which would provide anincrease in the tax base, tax revenues, employment, and general economichealth, and does not include the elimination of blighted, substandard, orunsanitary conditions, or conditions rendering the property or itssurrounding area…

Continue Reading Missouri S Ct Deconstructs Condemnor’s Stated Reasons, Finds Taking Is “Solely” For Economic Development

We generally don’t cover unpublished decisions, but since we’re adding this case to our “to watch” list, we’re making an exception. In 62-64 Main Street, LLC v. Mayor and Council of the City of Hackensack, No. A-3257-11T4 (N.J. Super. May 3, 2013), the Appellate Division of the New Jersey Superior Court held that “the trial judge and the City misapplied our Supreme Court’s decision in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007),” when it concluded that the taking of property for redevelopment was supported by a blight finding. The appellate court concluded that the city had not made a factual showing that the properties it wishes to take are in an actual state of “deterioration or stagnation that negatively affects surrounding areas.”

Under the Gallenthin decision, New Jersey courts — unlike the courts in many other states — are not mere rubber…

Continue Reading NJ App: No Blight Proven In Redevelopment Taking

In “Why big development is so difficult in Hawaii,” Hawaii Business magazine tackles an issue first raised by U. Hawaii lawprof David Callies in recently-published law review article (and follow-up interview), where he labeled the record of the 1993-2010 Hawaii Supreme Court on property issues “appalling” (80% overall success rate for environmental and native Hawaiian litigants, 65% of cases reversing the Intermediate Court of Appeals). As Callies said in an earlier presentation, “ninety percent of the time, government and the private sector are wrong? Give me a break.” (Remember, this is the court that concluded that “western concepts” of property law such as exclusivity are “not universally applicable in Hawaii.”)

Callies’ conclusions sparked reaction from his academic colleague environmental lawprof Denise Antolini, who defended the court’s environmental jurisprudence in an article on the grounds that it wasn’t so much focused on outcome, but on process.

Continue Reading Hawaii Business Mag Story Misses The Big Issue On Development, Environmental Law, And Land Use

The other shoe has dropped, and in “Environmental Lawyers Off Target With Criticism Of Callies,” U. Hawaii lawprof David Callies responds to and rebuts an earlier op-ed by the Director of the Sierra Club and an Earthjustice lawyer which criticized Professor Callies’ recently-published law review article (and follow-up interview) detailing the stunning success rates certain parties such as the Sierra Club and Earthjustice enjoyed in the Hawaii Supreme Court from 1993-2010.

In that article, Callies labeled the record of the court on property issues “appalling” (80% overall success rate, 65% of cases reversing the Intermediate Court of Appeals). As Callies said in an earlier presentation, “Ninety percent of the time, government and the private sector are wrong? Give me a break.” (Remember, this is the court that held “western concepts” of property law such as exclusivity “is not universally applicable in Hawaii.”)

The responsive…

Continue Reading Enviro Lawyers Off Target With Criticism Of Callies, Says Callies

On Tuesday, February 26, 2013 from 7:15 – 8:309 p.m. in Classroom #2, the University of Hawaii Law School is sponsoring a talk about “The PLDC and Property Rights in Hawaii,” which will feature our Damon Key colleague Mark M. Murakami.

PLDC refers to the Public Land Development Corporation, a state agency created in 2011 to develop state-owned lands, primarily in concert with private entities. As Honolulu Civil Beat‘s information page on PLDC notes:

The corporation has broad powers for entering into private partnerships and establishing its own governing objectives and policies. It also is tasked with identifying state lands under DLNR that are suitable for development. The Board of Land and Natural Resources must approve all land transfers.

The corporation, with the approval of the governor, can also issue revenue bonds for constructing, acquiring and renovating public facilities, as well as for the acquisition…

Continue Reading Upcoming Event: The PLDC and Property Rights in Hawaii

This morning at the ALI-CLE Eminent Domain and Land Valuation Conference, we made a presentation (along with Cornell lawprof Robert Hockett and moderator Jim Burling) on the issue of the use of eminent domain to seize “underwater” mortgages.

Late breaking: it must have been something we said – the Joint Powers Authority (the agency formed by San Bernardino County and two county municipalities to study the issue) today announced it would not use eminent domain to take underwater mortgages, noting that “the group decided to give up on the idea due to a lack of public support. ‘We are taking that off the table,’ [the chief executive and chairman of the JPA] said Thursday.”

Here’s the video we mentioned, an interview with the chairman of Mortgage Resolution Partners for the views from the outfit that stands to benefit from the use of using eminent domain to take underwater mortgages.

Continue Reading Materials And Links From Today’s ALI-CLE Presentation On Condemnation Of Underwater Mortgages