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Now that the dust has settled somewhat, for your weekend reading, here are your links to some of the vast amount of commentary which the Murr v. Wisconsin decision has thus far generated:

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Continue Reading Murr Round-Up

The Township of Scott, Pennsylvania, apparently has a problem of unregulated cemeteries. Who knew?

So it did what local government do when they think they have a problem, it passed a law. That law, Ordinance 12-12-20-001, required owners of all cemeteries, public or private, to maintain them. The ordinance also contained two troublesome provisions. First, it requires the owners of the cemeteries to keep them open to the public during the day. Second, it allows the Township’s code inspectors to enter “any property” to inspect and see if it is in compliance with the ordinance.  

Under the authority of the ordinance, a code inspector came on Knick’s property without a warrant, and told her “guess what, these stones are actually grave markers, and you better clean up this cemetery.” Knick’s response was “what cemetery? My land doesn’t have a cemetery on it.” Not buying it, the inspector wrote…

Continue Reading Night of the Living Zombie Zoning Inspectors – Ordinance Allowing Searches For Unauthorized Cemeteries “Constitutionally Suspect,” But Not Yet Justiciable

Here are links to the cases and materials we spoke about today during our portions of the APA’s 2017 Planning Law Review webinar:

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Continue Reading Cases And Links From Today’s American Planning Association’s 2017 Planning Law Review

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If my colleagues don’t wise up and change their minds before August, I am slated to become Chair of the ABA’s Section of State and Local Government Law (which, by the way, includes an Eminent Domain Committee, Chaired by Howard Roston, and co-Chaired by Kelly Walsh and John Peloso). On Friday, August 11, at the ABA Annual Meeting in New York City, we’ll be having a party to celebrate, and you are invited. 

Earlier that day, our Section is producing a CLE session about the US Supreme Court’s recent decision in Murr v. Wisconsin, “Murr and Beyond: Implications for Regulatory Takings,” featuring two of the arguing counsel in the case (John Groen (PLF), and Misha Tseytlin (Wisconsin SG), and commentary from me and Nancy Stroud (FL). Judge (ret.) Peter Buschbaum (NJ) is moderating. We’ll not only try and figure out what the majority did in Murr,…

Continue Reading Friday, Aug 11, 2017, New York City: Chair-Elect Reception, Unpacking Murr – ABA State & Local Govt Law Section

There’s a lot of buzz about “what’s next” after Murr v. Wisconsin, and what this case may augur for regulatory takings. There are already quite a few discussions and analysis panels scheduled, including these three in which we’re participating:

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Continue Reading Your Post-Murr Reading List

Here’s the opinion of the Connecticut Supreme Court in a case we’ve been following, Barton v. City of Norwalk, No. SC 19671 (July 4, 2017). 

As we noted in our earlier post where we detailed the facts, the case involved two non-contiguous parcels, one of which was used for a parking lot which the City later condemned to build a police station. The parking lot had provided parking for the commercial building on the other parcel (the City had required the owner to build the lot, after the City curtailed street parking). In the eminent domain case taking the parking lot, the owner claimed damage to the commercial operation and lot, but the court prohibited evidence of that damage.

So the owner instituted a separate inverse condemnation claim, seeking recovery for damage to the commercial operation and lot caused by the loss of parking across the…

Continue Reading The Connecticut Supreme Court “Gets” The Larger Parcel Issue: It’s About Joint Use Of The Two Parcels

If you are within striking distance of Madison next month, consider attending the “Property Rights and Land Use in Wisconsin” symposium at the U. Wisconsin Law School. 

This is a one-day conference, and as you might expect, one of the big focuses of the day will be the U.S. Supreme Court’s decision in Murr v. Wisconsin. The speakers will also cover legislative developments, as well as the Wisconsin Supreme Court’s decision in McKee v. Fitchburg (which reminds us to get this opinion out of our queue and onto the blog, which we will do shortly). 

Register here (a very modest $100 for the entire day). 

Brochure, U. Wisconsin’s “Property Rights and Land Use in Wisconsin” Symposium (July 20, 2017) 

Continue Reading U. Wisconsin Property Rights & Land Use Symposium (July 20, 2017)

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So how does a property lawyer salve the wounds of the last few days, which saw a really bad Supreme Court ruling in a regulatory takings case, and shortly thereafter the justices deny review of your just compensation petition while you just happen to be in Los Angeles, California?

Langer’s Deli, that’s how. 

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First, some background.

Many years ago, when my mother was still alive, she resided in Honolulu at an assisted living place. Very nice it was, and it allowed her to remain independent much longer than she might otherwise have been able to alone, and in my estimation probably added 10 years to her life. One of her fellow apartment owners was Robert Corn, a lawyer who had retired from his long career as a senior deputy District Attorney in (and for) the County of Los Angeles.

When he learned I too was a lawyer, we’d…

Continue Reading The Larger Parcel, Eminent Domain, And The World’s Best Pastrami Sandwich

After Murr, the pending cert petition in Lost Tree was D.O.A., and today, the Court made it official. Cert denied. We thought that the Federal Circuit’s denominator analysis was the better one (although pretty much anything would have been better than what Justice Kennedy and his Immortals came up with in Murr). But since Lone Tree was a property owner win in the Federal Circuit, cert denial isn’t a bad thing.

The denial also let stand the Federal Circuit’s (correct) rule that it isn’t an economically beneficial use when the only use left after a regulation is that the property may recover its value some time in the future (aka “investment value”). This blows significant holes in the government’s common argument that the regulation isn’t a wipeout or a significant loss under Penn Central, because property usually rises in value so one day, the economic impact…

Continue Reading Cert Denied In Lost Tree (Relevant Parcel)

What to make the Justice Kennedy-authored 5 justice majority opinion in Murr v. Wisconsin, No. 15-214 (June 23, 2017)? 

There, the majority adopted — maybe “created from whole cloth” would be a more accurate description — a multifactor test for determining the “larger parcel’ or “denominator” in regulatory takings cases where the owner possesses more than a single parcel of land.  We quoted the opinion’s list in this post, and won’t repeat it entirely here, but below is a short list of things that now must be considered by lower court judges (not juries) when they are deciding how much of the property the plaintiff owns can be used to measure the impact of the regulation on the parcel which she claims was taken:

  • The “treatment of land.” Yes, the actual metes-and-bounds of the legal parcel, but also, get this, the “expectations … an acquirer of land must

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Continue Reading Justice Kennedy’s Social Justice Warrior Test For Takings Clause “Property” In Murr v. Wisconsin