Eminent Domain | Condemnation

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HAWSCT

We’re not going to go into very much detail or provide commentary on the Hawaii Supreme Court’s unanimous 88-page opinion in an eminent domain case we’ve been following, City and County of Honolulu v. Victoria Ward, Ltd., No. SCAP-22-0000335 (Dec. 29, 2023), because before we departed private practice for public interest law a couple of years ago, this was our client and our case (so we still have a bias).

Update: more on the decision from Jesse Souki, “Hawai’i Court Holds that Consideration of Severance Damages in Honolulu Rail Case Should be Left to the Jury” (“The HSCT was critical of the circuit court’s granting of summary judgment motions where there were genuine issues of material fact that should be decided by the jury[.]”).

Short story: the Honolulu rail agency (we’re still calling it “HART” and not the weird “Skyline” although the latter is…

Continue Reading Hawaii SCT: Most Of Those Eminent Domain Issues (Esp. Severance Damages) Are For Juries

Here are the cases that Michael Berger and I discussed in today’s presentation to the ABA State and Local Government Law Section’s Land Use group. It was good seeing everyone, even virtually:

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Continue Reading Cases And Links From Today’s ABA State & Local Govt Law Land Use Presentation

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Starting in January, we’ll be helping our friend and former law partner Mark M. Murakami with the venerated and oh-so-important Land Use course (Law 580) at the University of Hawaii’s Law School.

We’re temporarily stepping into some mighty big slippers (this is Hawaii, so we don’t always wear shoes), as this is the course that our mentor Professor David Callies taught for decades. And is there a better venue in which to teach and study land use law and regulation, and its limits? After all, Hawaii may be the most heavily-regulated land on the planet, and is a focal point for every issue you can think of, from zoning to environmental restrictions to takings to public trust to subdivision to admin law to … well, you get the drift.

We’ll cover those topics, as well as the fundamentals. And we have a few surprises up our sleeves — some impressive…

Continue Reading Hawaii Five-80: More Land Use (Law 580) At The University Of Hawaii

We’ve been eagerly waiting for the new season of the Institute for Justice’s podcast series, “Bound by Oath” to drop. Not only because it’s a great series – produced by John Ross, it is more like an audio documentary than a typical podcast – but also because John was kind enough to ask us to participate again (our last appearance was in Season 1, where we guested on the episode about the origins of the “incorporation” doctrine).

This season is all about property rights, and episode 2 is all about regulatory takings. Pennsylvania Coal Co. v. Mahon, and Penn Central Transp. Co. v. New York City, to be exact.

So just over a year ago, John and I headed up to anthracite coal country in Pennsylvania. We wanted to be on site on the exact 100th anniversary of the Supreme Court issuing the Mahon…
Continue Reading “Groping in a Fog” – Bound by Oath Podcast, S3 E2: Regulatory Takings – Penn Coal And Penn Central … Unplugged!

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Here it is — Professor Gideon Kanner’s final law journal article, published shortly before his passing:

Gideon Kanner, Eminent Domain Projects That Didn’t Work Out, 12 Brigham-Kanner Prop. Rts. J. 171 (2023).

Appropriately, we think, published in William and Mary Law School’s Brigham-Kanner Property Rights Journal, named in part in Gideon’s honor.

This isn’t a typical law journal article, but an essay collecting Professor Kanner’s thoughts, comments, and (best of all) opinions on, well, eminent domain (and redevelopment) projects that didn’t work out.

In Gideon’s own words, from the Introduction:

But whether you favor widespread use of eminent domain or not, and whether the projects created by its use are sound or not, it is deplorable that the power of eminent domain has been often deployed to the detriment of racial and politically powerless minorities. Typically, redevelopment projects tend to displace middle class and poor people from…

Continue Reading Professor Kanner’s Final Article: “Eminent Domain Projects That Didn’t Work Out,” 12 Brigham-Kanner Prop. Rts. J. 171 (2023)

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Aloha, Gideon

This is one of those posts I wish I didn’t have to write.

I’m sad to report that our teacher, mentor, and friend Professor Gideon Kanner passed away on Wednesday, November 22, 2023, in his 93d year.

Appellate advocacy, eminent domain, and land use legend. Holocaust survivor. Prolific author and speaker. Argued Agins v. Tiburon at the Supreme Court. Educated generations of dirt lawyers at Loyola LA Law School. And even more through various professional legal education programs at Practicing Law Institute, American Law Institute-American Bar Association (ALI-ABA), and ALI-CLE, among others. One of the two lawyers for whom the Brigham-Kanner Property Rights Project at William and Mary Law School is named.

A person with sharp moral and intellectual clarity. Someone who never, ever — ever — gave up or gave in. We could go on and on, but we shall keep it short, because his legacy is…

Continue Reading Farewell To A Giant – Gideon Kanner (1930-2023)

A big thank you to Clint Schumacher and his Eminent Domain Podcast for having us on the program (this is the sixth time, not that we’re counting). We joined Clint to chat about three breaking issues in eminent domain (highlighted by the intriguing cases we discuss), as well as to preview the upcoming 41st ALI-CLE Eminent Domain Conference, February 1-3, 2024, in New Orleans.

As Clint describes it:

Robert Thomas of Pacific Legal Foundation joins us for a review of three impactful cases that eminent domain practitioners should watch as they work their way through the courts. We also get a preview of the 2024 ALI-CLE Eminent Domain and Land Valuation Litigation Conference that will be held in New Orleans this coming February.

Click here for information and registration for the ALI-CLE conference.

Please share your thoughts on the show or this episode with me. I’m on X @J_Clint…

Continue Reading We (Re)Join Clint Schumacher’s Eminent Domain Podcast: Three Impactful Issues, And The 41st ALI-CLE Conference (New Orleans, Feb 1-3, 2024)

Check this out, our law firm colleague Joshua Thompson talks about regulatory takings, and his big Supreme Court victory in Cedar Point Nursery.

If you are reading this blog, you already know what that means. Regulatory takings. Bundle of sticks. Penn Central (bleh), and right to exclude. Here’s the description of the program:

In this thought-provoking episode, Bob Stetson and Joshua Thompson, Director of Equality and Opportunity Litigation at the Pacific Legal Foundation, discuss the landmark case of Cedar Point Nursery vs. Hassid and explore the intricate balance between private property rights and public interests. What constitutes a ‘taking’ and how far government regulations can go in the name of the public good?

Stream it above, or listen on Spotify here.

(Our own thoughts on the Cedar Point case here.)Continue Reading New Podcast: The Cedar Point Takings Case (From The Guy Who Argued Cedar Point)

“Erasing the Black Spot“ from WHRO on Vimeo.

As we first noted here, Hampton University and WHRO recently produced a live program on “Erasing the Black Spot – How Virginia Universities Have Disrupted Black Neighborhoods.” We couldn’t make it in person, but watched the live-stream.

Now, as we hoped, the recorded program has been published. Stream it above, or watch here on Vimeo. Here’s the description:

Virginia’s public universities have a long history of expanding campuses in the name of progress and economic growth. But often, these expansions used eminent domain and property seizures to disrupt and diminish thriving Black communities across the state.

An investigative series by The Virginia Center for Investigative Journalism at WHRO and ProPublica uncovers the damaging social and economic impacts on Black communities of college expansions at Christopher Newport University, Old Dominion, and the flagship University of Virginia.

In the…

Continue Reading Program Recording: “Erasing the Black Spot” – Virginia’s Use Of Eminent Domain To Take Minority Property

We don’t often post trial court orders — especially state trial court orders — but read on and you will understand why we made an exception here. Our thanks to an Oregon colleague for sending it our way.

Today’s case involves a pretty typical situation — a condemnor (or, “condemner” — for it is in Oregon that our scene lies) is contemplating taking property from someone, and wants and needs to figure out whether the property it is contemplating is suitable. It needs to get on site and check it out. Do things like surveys, examinations, tests, and sample-taking. Often, the owner of the property doesn’t mind: pay me a bit for my trouble, indemnify me in the event someone gets injured, and you can have limited access to do your business and then go on your way, condemner. 

But sometimes, an owner — as is her right — says…

Continue Reading Some Precondemnation Entries Are Takings Requiring An Up-Front Condemnation And Compensation