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Some of the Land Use Institute faculty, including (front row left), Planning Chair Frank Schnidman and Planning Co-Chair Patty Salkin

Last Friday at the 32nd Annual Land Use Institute in Detroit, I was honored to moderate a freewheeling discussion by a panel of takings experts, Professor Steven Eagle, Minnesota lawyer Howard Roston, and Michigan’s own Alan Ackerman on “Takings, Eminent Domain, and Vested Rights.”

Here are the cases and other materials we discussed, as well as a few others which we did not have time to cover (but wish we could have):


Continue Reading Cases And Materials From The Takings And Eminent Domain Session At The Land Use Institute

Here’s a bit passed on to us from a colleague who reads USA Today. Leading off “Justice Gorsuch confirms conservatives’ hopes, liberals’ fears in first year on Supreme Court,” is this snippet, which points out a Just Compensation case in which we represented the (denied) petitioner:

WASHINGTON – Neil Gorsuch had been a member of the Supreme Court for exactly 11 weeks when he made clear in a single day what type of justice he would be.

The court struck down an Arkansas law that treated same-sex couples differently than opposite-sex couples on their children’s birth certificates. Gorsuch dissented. 

The court refused to consider a challenge to the Department of Veterans Affairs’ system for evaluating disability claims. Gorsuch dissented.

The court declined to hear a challenge to a California law limiting who can carry a concealed gun in public. Gorsuch dissented.

And the court turned aside a challenge to the meager sum Mississippi paid when it converted a former landowner’s property into a park. Gorsuch said the justices should hear a similar case “at its next opportunity.”

Thus it was that on the last day of its 2016-17 term — as the court addressed gay rights, government power, gun ownership and government takings — Neil McGill Gorsuch announced to the legal world that he would not go along to get along.

“He came to the court more ready to jump into the deep end than a lot of recent nominees,” says Jonathan Adler, a law professor at Case Western Reserve University School of Law.

Here’s why

we thought the denial of cert in that case (and others) wasn’t necessarily a bad sign.
Continue Reading USA Today Notes Just Comp An Area Where Justice Gorsuch “Jumping Into The Deep End”

When the city condemned a portion of CED’s property back in 2012 for a highway project (replacing an intersection with a roundabout), the city’s appraiser testified that the taking did not confer any “special benefits” to CED’s remainder parcel. Eventually, CED and the city settled the case and the city paid agreed-upon compensation and severance damages. 

Flash forward a few years, and to help fund the roundabout project, the city adopted a special assessment and tagged CED and other nearby landowners. Based on its street frontage, the city charged CED a total of $40k, asserting that CED’s parcel had specially benefited from the improvement project by, among other things, “a substantial increase in accessibility, which includes safer, lower cost, and short travel time for customer, deliveries and employees. These special benefits are different in kind that those enjoyed by the public for through traffic.” The city acknowledged there were also

Continue Reading Wisconsin: “Special Benefits” In Eminent Domain Means “Uncommon Advantage,” But Only Regarding Market Value

Space is filling up, but there’s still time to join us later this month in Detroit for the 32nd Annual Land Use Institute (April-19-20). 

We’ll let program Planning Chair Frank Schnidman explain all the reasons why, and we’ll add only these points: (1) it’s a very good program that won’t take much of your time (fly in for the Thursday afternoon program, stay a night, fly home on Friday evening); (2) Detroit is the place to be these days; and (3) it’s one of the best deals in CLE credits, with tuition as low as $400.

2018 Land Use Institute Brochure Detroit 5 2018

Continue Reading There’s Still Time To Join Us In Detroit: 32d Annual Land Use Institute

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As we reported here, the U.S. District Court for the District of Hawaii just finished a jury trial in a regulatory takings case (removed by the defendant State of Hawaii from Hawaii courts) involving a stalled development on the Big Island.

The jury has returned a verdict after 8 days of trial, concluding the State is liable under both Lucas and Penn Central theories, after only 15 minutes of deliberation after their lunch break. 

But there’s more to this story, because here’s the buried lede. The court yesterday made this entry in the docket: 

EO: The court proposes to enter an order awarding nominal damages of $1 to the plaintiff and then to enter judgment in this case. This will start the running of the clock not only for appeal but also for requests for fees and costs under Local Rule 54.3. If the parties have concerns about this

Continue Reading Lunch And 15 Minutes: Federal Jury Finds State Land Use Commission Liable For Lucas And Penn Central Taking

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This fall, I’ll be teaching a new course at the William and Mary Law School in Williamsburg, Virginia.

Here’s the description of Property Rights: Law and Theory (Law 608) from the course catalog:

Property rights and property theory have been essential components of Anglo-American law for centuries, and the protection of the right of private property ownership is one of the foundations on which the U.S. Constitution, the Bill of Rights, and the post-Civil War Amendments are built. In more recent times, however, property law has taken on a new role, and has been viewed differently than in the past, especially in light of the development of environmental law and the evolving concept of public trust.

Property Rights Law and Theory will focus on the history, policy, and, to some extent, the politics of property law, property rights, and related legal topics. We will examine how the right of

Continue Reading The Paper Chase Is On!

For those of you who have not recently attended the ALI-CLE Eminent Domain and Land Valuation Litigation Conference (which we held recently in Charleston, and which we’re planning for in Palm Springs in Jnauary 2019), here’s another sampling of the kind of thing we do.

It’s our New Jersey colleague Anthony Della Pelle talking about the issues in “Orange Barrel Litigation: Temporary Takings Caused by Construction,” in the session he shared with Professor Matthew Holt.

A very informative session, and these clips only give a small taste. More here, from ALI-CLE, including links to the on-demand video sessions we recorded in Charleston.  

It isn’t too early to mark your calendars for Palm Springs, January 24-26, 2019. Stay tuned here for further details as they become available.


Continue Reading Tony Della Pelle On “Orange Barrel Litigation: Temporary Takings Caused By Construction”

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Here’s the printable brochure with the details on the 32nd Annual Land Use Institute in Detroit, April 19-20, 2018. We’ve plugged the program before so we won’t do so again, except to say that you really should attend because (1) it’s a very good program that won’t take much of your time (fly in for the Thursday afternoon program, stay a night, fly home on Friday evening); (2) Detroit is the place to be these days; and (3) it’s one of the best deals in CLE credits, with tuition as low as $400.

2018 Land Use Institute Brochure Detroit 5 2018

Continue Reading April 19-20, 2018: Land Use Institute, Detroit (Printable Brochure)

In North Carolina Dep’t of Transportation v. Mission Battleground Park, No. 361PA16 (Mar. 2, 2018), the North Carolina Supreme Court confirmed that real estate brokers — and not only appraisers — can testify about the fair market value of condemned property. 

The background is fairly routine — the DOT condemned a portion of a tract of land for a highway project, made a $276,000 deposit which the landowner considered insufficient, and they went to trial. The owners asked a licensed real estate broker to testify about fair market value. He prepared a report which relied on the before-and-after method, and concluded that just compensation was $3.734 million.

The DOT sought to preclude him from testifying, arguing that brokers are limited by statute to preparing a report on probable selling price, and therefore could not testify as an expert regarding fair market value. The trial court agreed. The owners offered

Continue Reading NC: Real Estate Broker Is Qualified To Testify About Fair Market Value

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Mark your calendars, plan to come: Detroit, April 19-20, 2018. For what is perhaps the best deal in CLE (tuition as low as $400), the 32d Annual Land Use Institute, sponsored by our section of the ABA, the Section of State and Local Government Law.

The venue is the Detroit Mercy School of Law, and the conference hotel is the historic Westin Book Cadillac in downtown Detroit. The Land Use Institute is being held in conjunction with the Section’s Spring State and Local Law Conference. Register for one conference, and you are free to move between sessions (no additional registration fees).

Planning Chairs Frank Schnidman and Dean Patrica Salkin have assembled an excellent faculty and program for the two days. Topics include: “Nuts and Bolts of Land Use Practice: Vested Rights and Regulatory Takings,” “Public-Private Partnerships,” “Climate Change and Resilient Development,” “Client

Continue Reading 32nd Annual Land Use Institute: Detroit, April 19-20, 2018