Inverse condemnation

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Aliaba We just wrapped up the annual three-day Festival of Eminent Domain Law, otherwise known as the American Law Institute | American Bar Association’s two CLE conferences, “Eminent Domain and Land Valuation Litigation,”and “Condemnation 101: How To Prepare and Present an Eminent DomainCase.” 

Dana Berliner, Matt Fellerhoff and I spoke about about “Winning Arguments in Challenging the Right toTake and Public Use” in the Land Valuation course, and in the 101course, I presented a session on “Voir Dire: Selecting a Jury in a Post-Kelo Era in a Down Economy” with William Blake and Susan MacPherson.

The depth of talent teaching and attending these courses is unbelievable, so I always learn more at these conferences than I impart. Among the other presenters were our fellow law bloggers Gideon Kanner, Anthony Della Pelle and Edward McKirdy. Internet marketing strategist Jayne Navarre also presented an interesting session on using…

Continue Reading ALI-ABA Annual Eminent Domain Conference Wrap-Up

On Wednesday, Honolulu lost its iconic former Mayor, Frank Fasi. Mayor Fasi will be remembered for a lot of things, but we here at inversecondemnation.com will fondly recall his cheek when it came to exactions and in lieu payments. Two of the more well known examples:

  • During the second wave of investment in Hawaii from Japan, he announced that any golf course developer who wished to obtain permits from the City and County of Honolulu would have to pay a $100 million impact fee. We’re not sure whether anyone ever paid the fee, and we’re pretty sure that even in the days before Nollan and Dolan that a court would cast a skeptical eye towards it, but sometimes you just have to admire the pure audacity of something.
  • In a case involving Queen’s Beach on Oahu’s east shore, the director of Mayor Fasi’s Department of Land Utilization testified that

…
Continue Reading Getting The “Goodies” And Honolulu’s $100 Million Golf Course Exaction

There is still time to register for the two ALI-ABA eminent domain conferences, “Eminent Domain and Land Valuation Litigation,” and “Condemnation101: How To Prepare and Present an Eminent Domain Case,” being heldconcurrently at the Westin Kierland Resort in Scottsdale, Arizona.

Thefirst course is designed for attorneys with some condemnationexperience, while the second is an introduction or refresher to thebasic concepts and techniques in a condemnation case. These are greatprograms, and registration discounts are available.

Moreinformation about “Eminent Domain and Land Valuation Litigation” isavailable here, and about “Condemnation 101” here.

Along with Dana Berliner and Matt Fellerhoff, I’ll be speaking about “Winning Arguments in Challenging the Right to Take and Public Use” in the Land Valuation course, and in the 101 course, I will be speaking with William Blake and Susan MacPherson about “Selecting a Jury in a Post-Kelo Era.”

If you attend, please stop by and Continue Reading Off To The ALI-ABA Eminent Domain Conferences

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

The Federalist Societyhas posted a podcast of my Pacific Legal Foundation colleague Jim Burling discussing Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

If that doesn’t work for you, go here to download the mp3.

The Stop the Beach Renourishment case, which has been argued and is currently awaiting dispositionby the Supreme Court, asks whether a state court is constrained by theTakings and Due Process clauses from rewriting the common law rules ofproperty. [Disclosure: we filed an amicus brief in the case supporting the property owners.]

Our summary of the oral arguments as well as links to the briefs are available on our resource page. A recent article summarizing the key amici arguments is posted here.

Also, a distant heads-up: the State and Local Government Law and the Real Property Sections will be presenting a major CLE…

Continue Reading Post-Argument Podcast On Florida Judicial Takings Case

My Pacific Legal Foundation colleagues Brian Hodges and Daniel Himebaugh have posted a new paper on Nollan/Dolan exactions: Have Washington Courts Lost Essential Nexus to the Precautionary Principle? – Citizens’ Alliance for Property Rights v. Sims, available on SSRN here. The authors’ summary:

ThisArticle examines how Washington State courts have allowed theprecautionary principle to encroach upon the essential nexus test inthe context of land use exactions. The essential nexus test requiresgovernment to establish a cause-and-effect connection betweendevelopment and an identified public problem before placing conditionson development. The precautionary principle, however, endorsesregulation of land use in the absence of causation. Although U.S.Supreme Court precedent requires government to prove causalconnections, recent Washington case law shows that this test ofcausation is morphing into a less scrutinizing means-end test ofrationality. This shift was evident in the recent case of Citizens’Alliance for Property Rights v. Sims. In that case, Washington courtsfound the government’s…

Continue Reading New Paper On Washington State’s Approach To Nollan/Dolan Exactions – Do Generalized Assessments Satisfy The “Essential Nexus” Test?

Recently, the owners of vacation cabins located on leased land in a state park on the island of Kauai filed a cert petition which asks the U.S. Supreme Court to review an unpublished decision of the Hawaii Intermediate Court of Appeals which held that the State did not run afoul of the Takings Clause when it required the owners to surrender their cabins at the end of the lease.

The trial court determined that the lessees had no property interest when their leases expired. The Hawaii Supreme Court declined review of the ICA’s disposition.

The lessees’ petition is available here, and presents the following question:

QUESTION PRESENTED

The State of Hawaii owns land in Kokee State Park on the island of Kauai. Petitioners, have leasehold estates in parcels on the land and own private cabins thereon. Each Petitioner, or his or her predecessor in interest, bought, built or inherited…

Continue Reading New SCOTUS Cert Petition From Kauai: Is Surrender Clause In State Lease A Taking?

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

Both parties have asked the Hawaii Intermediate Court of Appeals to take another look at its opinion in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (Dec. 30, 2009).

In that case, the court held (1) the Hawaii Legislature took existing littoral accretion when it assigned ownership of the accretion from beachfront owners to the State; and (2) the Legislature did not take “future accretion.” We summarized the opinion here. [Disclosure: we filed an amicus briefsupporting the property owners, available here.]

The State of Hawaii asserts the opinion should not have addressed the claim that land which had accreted prior to 1985 was taken. The State’s Motion for Clarification is here.

The property owners assert the ICA’s conclusion that “future accretion” is not a property interest should be reexamined. The ICA relied on three federal cases from the Ninth Circuit, Western Pac. Ry. …

Continue Reading Motions For Reconsideration In ICA Accretion Taking Appeal

PICT0319 This post deals with the practical impacts of the Hawaii Intermediate Court of Appeals’ recent decision in Maunalua Bay Beach Ohana 28 v. State of Hawaii,No. 28175 (Dec. 30, 2009). [Disclosure: we filed an amicus brief supporting the property owners,available here.]

First, some background for those who have not been following our recent posts on the November 2009 oral arguments, and the decision.

In 2003, the Hawaii Legislature adopted Act 73 (codifed here and here),which declared that title to shoreline land naturally accretedcannot be registered by anyone except the State, and that only theState could quiet title to accreted lands. Most critically, the Actdeclared that all accretion not registered was State property.

A three judge ICA panel held that Act 73 took accreted land in existence when the Act was adopted. The ICA agreed with the trial court that the Act rewrote the common law…

Continue Reading Balkanizing The Beach: The Practical Consequences Of Maunaula Bay Beach Ohana 28