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Update: Here are my first thoughts on Murr – “Justice Kennedy’s Social Justice Warrior Test for Takings Clause Property in Murr v. Wisconsin“

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The title alone should tell you this was authored by Justice Kennedy, which means that, as we thought it might do, today the U.S. Supreme Court held in Murr v. Wisconsin, No. 15-214 (June 23, 2017) that in determining the “denominator” in regulatory takings cases — in other words, what “property” owned by the plaintiff is the claimed diminution in value of the taken property compared — that “a number of factors” make up the inquiry, including: (1) “the treatment of the land, in particular how it is bounded or divided, under state and local law” (i.e., title); (2) the “physical characteristics” of the property (your guess is as good as ours); and (3) the “value of the property under the challenged regulation”…

Continue Reading SCOTUS, 5-3 Affirms Murr By Penn Centralizing Parcel As A Whole Analysis, Which Must Consider “A Number of Factors”

As readers may be aware, I’ll be taking over as Chair of the ABA’s Section of State and Local Government Law in a couple of months. I understand that many of my colleagues do not see the value in ABA participation, and I’ve explained why I do so here. It’s been a wonderful way for me to meet colleagues from around the nation, develop professional skills, learn about areas of law which I should know but do not practice. In short, it’s made me a better lawyer. If you aren’t participating, you really should consider it.  

We sent out a call for leaders this morning via email, and I’m reproducing it here for those of you who may be interested in joining our little enterprise but who didn’t get the email. 

Come, join us. 

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Volunteer! Network with colleagues! Develop professional strengths, add to…

Continue Reading State & Local Govt Law Section Is Looking For Leaders

Here’s the audio recording of the talk we gave to the ABA Section of State and Local Government Law’s Land Use Committee earlier today. (Some of you may note that in the intro we say the talk was on “June 17,” but since that’s tomorrow, we assume you understand that is just an error.)

The links to the cases and materials we mentioned in the talk are posted here. Continue Reading Recording – “Takings: Emerging Issues” ABA State & Local Government Law Section Talk

Update: the audio recording is posted here.

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Here are the links to the cases we mentioned in today’s ABA State and Local Government Law Section presentation, “Takings: Emerging Issues.”

The “Larger Parcel” In Regulatory Takings (and Eminent Domain)

Emerging Issues

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Continue Reading Links From Today’s ABA Presentation – “Takings: Emerging Issues”

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Mark your calendars for this Friday, June 16, 2017, at 2:00 p.m. Eastern Time for a free talk we’ll be giving, “Regulatory Takings: Emerging Issues.” 

Yes, it’s free, but there’s a catch: this talk is sponsored by the ABA Section of State and Local Government Law’s Land Use Committee, and you have to be a Section member (or be willing to join us). One of the benefits of being a member is that you can sign on to these bi-monthly calls and learn about the latest developments in the broad range of topics the Committee covers. Ping me if you want to sign up.  

And what’s the deal with the graphic above? Well, starting in August 2017, I’ll be taking over as Chair of the Section (assuming my ABA colleagues do not come to their senses before then), and the big focus of the Chair is to…

Continue Reading Upcoming Free Takings Talk (Friday, June 16, 2017). But There’s A Catch…

A small but critical mention in the cinema’s greatest closing argument (Dennis Denuto, Esq., above, in The Castle) for the Australia High Court’s decision in Mabo v. Queensland (No. 2), (1992) 175 CLR 1 (1992):

Denuto: It’s the vibe of it.

Judge: Allright, taken. Do you have a precedent which supports this … “vibe?”

Denuto: Yes, yes I do. Just one moment. [confers with client] … Mabo.

Judge: What about it?

Denuto: That’s your classic case of big business trying to take land … and they couldn’t.

Judge: Mr. Denuto, the Mabo decision pertains to the specific issue of native land title and terra nullius.

Denuto: Yeah!

Judge: So what part of the judgment is relevant to this case?

Denuto: Again … it’s just the vibe of it.

Which prompts us to note that it is the 25th anniversary of the date on which the Mabo decision was handed down…

Continue Reading “It’s the Constitution. It’s Mabo. It’s Justice…” 25 Years On For Australia’s Mabo Decision

The Florida Supreme Court’s opinion in Hardee County v. FINR, II, Inc., No. SC1501260 (May 25, 2017), is pretty Florida-specific, because it involves the interpretation of that state’s Bert Harris Act (something we wish we had in our arsenal), but there are lessons in the case that make it worth reading — it’s pretty short — for the rest of us. 

The facts are straightforward: FINR (a “neurological rehabilitation center”) applied for, and the County approved, a “Rural Center” land designation for FINR’s land, which normally would have resulted in a quarter-mile setback on adjacent properties. The County, however, granted an adjacent phosphate mining company an exception which shrank the setback to as little as 150 feet. FINR sued the County under the Bert Harris Act for the loss in value of its property as a neurological rehab center. 

The trial court concluded that since the County wasn’t…

Continue Reading Florida: To State A Claim Under The Bert Harris Act, It Must Be The Plaintiff’s Property Being Overregulated

Seattle

My thanks to Bart Freedman (K&L Gates) and Kinnon Williams (Inslee Best Doezie & Ryder) for asking me to speak on national takings and inverse condemnation issues at yesterday’s Eminent Domain conference in Seattle.

As you can see, the room was packed and standing room only. Here are the cases and issues I mentioned during my talk, “National Takings Trends, Hot Practice Areas, and Property Rights in the Age of Trump:”

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Continue Reading Cases And Links From Washington Eminent Domain Conference

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We all have had those moments, haven’t we?

Today’s linked story is more land-usey than eminent domain-ey, but still interesting for you condemnation lawyers on the line (besides, condemnation lawyers really do have to know land use law, don’t they?).

Honolulu can is a tough place to be, with our status as one of the most expensive places in the world to live, and the high cost of housing is one of the prime reasons for that. In Honolulu Civil Beat, Stewart Yerton has a story on the legal risks triggered when a City Council member suggested that the council might deny development permits if the permitted condos were sold to Chinese nationals instead of local residents. 

In “Opposition To Foreign Condo Sales Raises Legal Questions,” In addition to national experts on such things like Professor Eugene Volokh, the article quotes us about those times we have…

Continue Reading Land Use Facepalm

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Here’s what we’re reading today: 

Continue Reading Area 51 Taking, Dodger Stadium Taking, Attorneys’ Fees