Land use law

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The use of eminent domain for energy transmission corridors has become a hot topic lately. See, for example, the following posts:

The current center of the controversial issue is the TransCanada Keystone XL pipeline, and there’s been a lot of dis- and mis-information generated. Even Jon Stewart got in on the act.

So it was with relief that we have a new article by our Owners’ Counsel of America colleague William Blake, a partner in the Lincoln office of Nebraska law…

Continue Reading A Clear-Eyed Explanation Of The TransCanada Keystone XL Pipeline Eminent Domain Issue

There’s still time to register for tomorrow’s American Planning Association (Planning and Law Division)’s webinar, Fair Housing, Affordable Housing, and Local Planning and Zoning: Understanding the Obligations and Reducing Your Community’s Legal Risk. Here’s the description:

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Fair Housing, Affordable Housing, and Local Planning and Zoning: Understanding the Obligations and Reducing Your Community’s Legal Risk on Tuesday, November 25th from 2:00 to 3:30 PM EST. Registration is $20 for PLD members, $40 for nonmembers, and $45 for webinar registration plus a Planning and Law Division membership. Presented by Don Elliot of Clarion Associates and Brian Connolly of Otten, Johnson, Robinson, Neff & Ragonetti, this webcast explores the connection between local land use regulation and the federal Fair Housing Act.  

Register here. Continue Reading Upcoming APA Webinar On Affordable Housing

For those of you who couldn’t join us at the William & Mary Law School last month for the Brigham-Kanner Property Rights Conference (see our report here), the law school has made videos of the four panel presentations available here. 

They’re high quality videos, so be prepared for big downloads, but the presentations are worth it. While they are all good, our favorite was the impromptu discussion/debate during the third panel, “Balancing Private Property and Community Rights,” featuring panelists Kames Burling (Pacific Legal Foundation), Professors Richard Epstein (NYU), Steven Eagle (Geo. Mason), Mark Poirer (Seton Hall), and James Stern (William & Mary). 

Related articles
2014 Brigham-Kanner Property Rights Conference Report: Honoring Michael Berger

Continue Reading Brigham-Kanner Property Rights Conference – Panel Videos Now Available

The Hawaii Supreme Court has issued a unanimous opinion in Friends of Makakilo v. D.R. Horton-Schuler Homes, LLC, No. SCAP-13-0002408 (Oct. 30, 2014), holding that there’s not really such thing as a “cross appeal” in administratve appeals (at least in the sense that “cross appeal” is usually used in appellate procedure).  

Quick facts: D.R. Horton petitioned the state Land Use Commission for a boundary amendment (aka a rezoning). Three parties intervened and sought and were granted a “contested case.” The LUC concluded that D.R. Horton was entitled to the boundary amendment. Thirty days later, two of the three intervenors filed a notice of appeal under the Hawaii Administrative Procedures Act, Haw. Rev. Stat. § 91-14, which gives circuit (trial) courts jurisdiction over appeals by any person aggrieved by an agency’s decision in a contested case. The HAPA gives those parties 30 days to file.

Thirteen days after the appeal…

Continue Reading HAWSCT: No “Cross-Appeal” In Administrative Appeals

Here’s what caught our eye today:

  • Last evening, we attended lawprof Gregory S. Alexander‘s talk at the U. Hawaii Law School, “Five Easy Pieces: Recurrent Themes in American Property Law.” You know it’s not a real academic talk until the speaker uses the words “normative” and “neologism,” and Professor Alexander did not disappoint. But seriously, it was a thought-provoking hour, focused on our favorite topic, property law. A video was made, and hopefully the law school will post it on line so you can watch. We’ll link to it when they do. 
  • “Va. high court to look at Beach eminent domain appeal,” from the Hampton Roads newspaper, about a case which the Virginia Supreme Court just accepted. The case was triggered when the trial court refused to allow the jury to hear evidence of the DOT’s first appraisal and deposit, which was higher than its final appraisal

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Continue Reading Thursday Round-Up: “Five Easy Pieces” Talk, Re-appraisals, Foie Gras Ban Lives, Kelo In China, Kelo Movie

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A big thank you to our friend and colleague from Detroit, Dan Dalton, who sent us a recently-published book which he authored, “Litigating Religious Land Use Cases.” 

This book discusses how to litigate such a religious land use case on behalf of a religious entity pursuant to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)  and the First Amendment. While the First Amendment dates to the founding days of the United States, RLUIPA is a much more recent federal law that can serve as an effective tool in protecting the property interests of religious organizations.

A must-have for any land use lawyer (even if you don’t focus on religious land use cases, or don’t represent religious organizations in such cases), Dan’s book is a great overview of the applicable law, and a primer on the various causes-of-action that can pop up in these type of controversies.

Continue Reading New Book: Litigating Religious Land Use Cases (Dan Dalton)

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“You can’t have rights without advocates.”

                              – Michael Berger

We’re at the William and Mary Law School in Williamsburg, Virginia today for the 11th Brigham-Kanner Property Rights Conference. As we’ve noted earlier, Michael Berger is this year’s B-K Prize honoree, for his career contributions to property law and his “scholarly work and accomplishments [which] affirm that property rights are fundamental to protecting individual and civil rights.”

The list of past recipients is an All-Star roster of property scholars and jurists, including lawprofs Frank Michelman, Richard Epstein, James Ely, Carol Rose, Thomas Merrill, and Supreme Court Justice Sandra Day O’Connor (the latter perhaps more for where she ended up in her Supreme Court career than where she started). See the plaque on the Law School’s wall for the complete list of…

Continue Reading 2014 Brigham-Kanner Property Rights Conference Report: Honoring Michael Berger

We’re tied up today and don’t have time to do any analysis, so we post this without comment: Bowman v. California Coastal Comm’n, No. B243015 (Oct. 23, 2014), wherein the court held:

In Kleiniecke v. Montecito Water District (1983) 147 Cal.App.3d 240, we held it would not be inequitable to apply the doctrine of estoppel as a defense to the statute of limitations. Here we conclude it would be inequitable to apply collateral estoppel to require a party to dedicate a coastal easement as a condition of obtaining a coastal development permit.

We reverse a judgment denying a property owner’s petition for a writ of administrative mandate to eliminate a public access condition from a coastal development permit.

Slip op. at 1  

Bowman v. California Coastal Comm’n, No. B243015 (Cal. App. Oct. 23, 2014)

Continue Reading Cal App: “There is no rational nexus, no less rough proportionality”

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If you haven’t already, please mark you calendars: the agendas and faculty lists for the February 5-7, 2015 ALI-CLE eminent domain programs in San Francisco have been finalized. Registration is ongoing, and there’s even a few more days left for the early registration discount. Substantial group discounts are also available. 

We’re talking, of course, about Eminent Domain and Land Valuation Litigation (the “masters” program, now in its 32nd year), and Condemnation 101: How to Prepare and Present an Eminent Domain Case (the boot camp or refesher course on eminent domain fundamentals).  We’re the co-Planning Chair of the Eminent Domain and Land Valuation Litigation program along with Joe Waldo, and we think we’ve assembled an exciting agenda, presented by a faculty comprised of the nation’s best-of-the-best in our field of law.

Some highlights:

  • Eminent Domain National Law Update – Amy Brigham Boulris, Gunster, Yoakley & Stewart, P.A.,

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Continue Reading ALI-CLE 2015 Eminent Domain and Land Valuation Litigation & Condemnation 101 Agendas And Faculty Announced

Ah, Williamson County. We’ve ranted about it before, so we won’t do so here (again). But takings mavens know that a property owner must meet two tests before she can raise a takings claim against a state or local government in federal court: the state or local government must have reached a final decision on the uses to which her property may be put, and she must seek (and be denied) just compensation via state procedures.

We’ve always viewed both parts of the test as very “takings-specific” and not really applicable to other areas. The rationale supporting the final decision requirement is that a court really can’t tell whether property has been “taken” until it understands what uses may be allowed by the state or local government. Absent such a decision, the government may allow some economically beneficial use. Similarly, the state procedures test rationale is that a…

Continue Reading 2d Cir Extends Williamson County Ripeness “Final Decision” Requirement To ADA Claims