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We’re in Chicago this week participating in the ABA Annual Meeting. While we really are looking forward to a slate of thrilling committee meetings, what we’re really anticipating is the CLE programming. Here are what we think are the highlights:

  • Looming Land Use Constitutional Issues –  Friday, July 31, 2:45 – 4:15 pm, Westin Chicago River North Grand Ballroom B –  Four hot land use issues: land use aspects of medical marijuana legislation; takings and exactions in San Francisco’s requirement for owners to pay departing tenants huge sums; Horne and takingsNew Jersey’s dune program. With Tony Della Pelle and Stephen Schwartz (one of the counsel for the Hornes), among others. 
  • The 2014 Supreme Court Term in Review – Friday, July 31, 2015, 10am – noon, Westin Chicago River North Promenade Ballroom C – “This panel of noted legal professionals, academics and journalists provides an overview of the Supreme Court

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Continue Reading ABA Annual Meeting Programming: Takings, Land Use, Supreme Court, Election Law, Appellate Traps

If you need CLE credits, you are in luck. There’s a plethora of upcoming programs that may be of interest to readers. 

First, the ones we’re involved with:

  • The Takings Issue – August 10, 2015, 1 – 2pm ET (webinar) – from the International Municipal Lawyers Association. We’re joining Professors Dan Mandelker and John Echeverria, and land use lawyer Michael Giairno, to talk takings. “Two titans of takings, who just happen to have profoundly opposing views of the world, have graciously agreed to discuss the latest developments and spar. This will be the Great Debate of 2015.” Sounds like fun, no? Registration free for IMLA members, $99 for everyone else. More information, including registration, here. 
  • Is Sharing Really Caring? The Law of Transportation Sharing: Uber, Lyft, and the Sharing Economy – July 30, 2015, 2:15-3:45pm CT (in-person) –  at the ABA Annual Meeting in Chicago. We’re moderating a session

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Continue Reading Mark Your Calendars For Upcoming Events: Takings, Sharing Economy, Fair Housing, etc.

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The Hornes outside the Supreme Court

“Separate educational facilities are inherently unequal.”
Chief Justice Earl Warren,
Brown v. Board of Education

“The Fourteenth Amendment does not enact
Mr. Herbert Spencer’s Social Statics.”
Justice Oliver Wendell Holmes,
dissenting in Lochner v. New York

“…prejudice against discrete and insular minorities…”
Justice Harlan Fiske Stone, in footnote 4,
United States v. Carolene Products Co.

“Raisins … are a healthy snack.”
Chief Justice John G. Roberts,
Horne v. Dep’t of Agriculture

A Supreme Court win is a win, particularly by a margin of 8-1, so we’re not going to complain too much about the Court’s opinion in Horne v. Department of Agriculture, No. 14-275 (U.S. June 22, 2015), holding that the USDA’s requirement that raisin producers physically turn over a percentage of their yearly crops to the government without being provided compensation is a taking in violation of the Fifth Amendment.

I …

Continue Reading Horne v. USDA: Way More Than Silly Raisin Jokes

Here’s the Complaint, filed late last week in an Oklahoma federal court, challenging the EPA and Corps of Engineers’ new “waters of the United States” rule under the Clean Water Act.

According to the lawsuit, the new WOTUS rules are an attempt to expand the regulatory authority of the agencies well beyond what the Clean Water Act allows. 

This lawsuit joins two others recently filed. The first was a complaint in a South Dakota federal court filed by 13 states, and the other a complaint by the State of Oklahoma, filed in federal court in the Northern District of Oklahoma.

All three make the same general allegations: the EPA and the Corps of Engineers went too far under both the Clean Water Act and the Commerce Clause, and are attempting to regulate property well beyond the reach of “navigable water of the United States” or “waters of …

Continue Reading New Clean Water Act WOTUS Rule Challenged: “The Agencies Drastically Expand Their Jurisdiction by Redefining ‘Waters of the United States’”

Donald Trump is garnering a lot of press these days for things not related to eminent domain. And there’s a lot of awareness of the high-profile eminent domain battle in New Jersey, in which he was the “B” in an attempted “A to B” taking. But not everyone is as aware of a later, similar controversy. 

So we dusted off our review of the 2011 documentary You’ve Been Trumped, and post it below. The film focuses on the property owners whose land is in the shadow of Trump’s golf course and luxury residential project in Aberdeenshire, on the west coast of Scotland. Compulsory Purchase Orders were threatened (but ultimately not issued), but the scenario presented the film will be familiar to anyone who follows eminent domain and property rights issues.

The film is available on DVD and streaming from a variety of sources. Definitely worth your time. Especially if…

Continue Reading If You Are Even Thinking About Voting For Trump …

LUI header

The Land Use Institute, a program that for many years has been planned by co-chairs Frank Schnidman and Gideon Kanner, has found a new home with the American Bar Association’s Section of State and Local Government Law as the main sponsor. It also has a new Planning co-chair, Dean Patty Salkin of Touro Law School, who has stepped in for Professor Kanner.

This 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 year, the one-day program is being held in conjunction with the ABA Annual Meeting in Chicago. It will be held on Thursday, July 30, 2015…

Continue Reading Land Use Institute: Planning, Regulation, Litigation, Eminent Domain, and Compensation – 31st Annual Conference, Chicago, July 30, 2015

We were involved with this issue in the days leading up to the initiative election, and we represent an amicus party in this case, so we will post the court’s order without comment.

The title of this post tells you what you want to know. 

Order Determining that the County of Maui GMO Ordinance is Preempted and Exceeds the County’s Authorit…

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Continue Reading Federal Court: Maui County GMO Regulation Ordinance Preempted by Federal And State Law

Everyone is distracted today by the too-big-to-fail “Obamacare” ruling by the 6-3 Supreme Court (or, as Justice Scalia called it “SCOTUScare“), in which the Court concluded that the vibe of a statute matters more than its actual language, and the Court’s ruling in the “disparate impact” fair housing case (speaking of which, we wish the Court would apply the same standards to pretext in eminent domain), and we certainly wouldn’t want to divert your attention from that thrilling enterprise, so we’ll keep it brief with this post. 

In Teitlebaum v. South Florida Water Mgmt District, No. 3D14-0963 (June 24, 2015), the Florida District Court of Appeals held that there’s no such thing as condemnation blight in an inverse condemnation case. Teitlebaum and her neighbors among them have owned 3,550 acres of Ag-zoned land on the edge of the Everglades for decades, “apparently hoping that the land…

Continue Reading Florida App: Inverse Plaintiffs Must First Show A Wipeout Taking Before “Condemnation Blight” Considered

Apa_2015_planning_law_review

On Wednesday, July 1, 2015, the American Planning Association is putting on the 2015 Planning Law Review, a program highlighting the most important and topical cases decided by the courts recently. Here’s the program description:

Planning feels the impact of decisions from the U.S. Supreme Court, federal district courts, and state courts. How will their rulings affect you? Get a briefing on the year’s legal developments, from First Amendment issues to environmental actions, housing, and equal access. Presenters also will discuss major legislative initiatives and APA’s amicus filings. Join in a lively, informative program you and your staff, colleagues, and officials won’t want to miss. This program is also suitable for planning commissioners.

Joining me on the faculty are Jason Jordan, Director, Policy and Communications, American Planning Association (Moderator); Nancy Ellen Stroud, Lewis, Stroud & Deutsch; John M. Baker, Greene Espel; and John Echeverria, Professor of…

Continue Reading Upcoming APA Webinar: 2015 Planning Law Review

… look no further than the above report from The Daily Show.

Yeah, it’s satire and does at times make light of a serious case, but the USDA was trying to defend a regulation that branded the Hornes as “raisin outlaws,” going so far as to hire a private security firm to “investigate the product” that the Hornes were defrauding the government of (dried fruit).

Top off “the world’s most outdated law” with the Ninth Circuit’s ridiculous avoidance after the Supreme Court’s earlier remand (the Takings Clause does not apply with equal force to personal property as it does to land) , and you have the recipe for success and an 8-1 ruling. 

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Magna Raisins: 8-1 SCOTUS Says There’s A Taking, But Not All Agree On

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Continue Reading Here’s Why The Supreme Court Held The Raisin Marketing Order Was Unconstitutional…