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University of Hawaii lawprofs Carl Christensen and Williamson Chang have kindly asked me to visit their Legal History of Hawaii class (Law 520D) on Thursday, September 19, 2013, and guest lecture on the topic of “Land Reform and the ‘Public Use’ Factor in Eminent Domain: Midkiff, Kelo, County of Hawaii v. C & J Coupe.”

In preparation for that session, here’s the reading list:

If you have additional time, read these two briefs as well:

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Continue Reading Reading List For Sept 19 Guest Lecture For Hawaii Legal History Class

Here’s what we’re reading today:

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Continue Reading Must Read Monday: RLUIPA Ripeness, “The Taking Issue,” Oysters In The Wilderness, Precondemnation Damages

Here’s the cert petition filed earlier this week, asking the Supreme Court to review the Ninth Circuit’s decision in MHC Financing Ltd. P’ship v. City of San Rafael,714 P.3d 1118 (9th Cir. 2013).

That’s the case in which the Ninth Circuit overturned the District Court’s ruling (after two trials) that MHC had proven a Penn Central taking and was entitled to just compensation for the City’s mobilehome rent control ordinance. The panel’s rationale was that MHC purchased the mobilehome park with the oppressive regulations already in place, so it had no “investment backed expectations” of operating free of the regulations.

We posted our thoughts on the Ninth Circuit’s ruling here, so we won’t go into the details of the cert petition, except to note two things:

  • We didn’t get how the Ninth Circuit just ignored Palazzolo. We still don’t.
  • The second Question Presented (below) is particularly fasinating.

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Continue Reading New Regulatory Takings Cert Petition: 9th Circuit Made Hash Of Penn Central

Taking_coverimage_webIf you are anywhere within striking distance of Touro Law School (Central Islip, Long Island), you should make plans to attend a conference that promises two days of fantastic programming on October 3 and 4, 2013.

“The Taking Issue – 40th Anniversary Symposium” is dedicated to the memory of the legendary Professor Fred Bosselman, and lead author of The Taking Issue, a 1973 report to the President’s Council on Environmental Quality. While the themes in the book have been overtaken by the Supreme Court’s takings cases, it remains a touchstone work for anyone interested in the subject.

Conference co-Chairs Dean Patricia Salkin and Professor David Callies (a co-author of The Taking Issue) have assembled an excellent faculty and agenda. There will be panels on partial takings, the Nollan/Dolan/Koontz issue, the relevant parcel question, and one on ripeness which we’ll be moderating…

Continue Reading Conference Announcement: The Taking Issue – 40th Anniversary Symposium

The U.S. Court of Appeals for the Eleventh Circuit, in Temple B’Nai Zion, Inc v. City of Sunny Isles, No. 12-12094 (Aug. 29, 2013), held that the Williamson County ripeness doctrine did not prevent the Temple from bringing its RLUIPA (and related) claims in federal court. 

The right result for sure. But wait, you say, isn’t Williamson County a ripeness rule for takings claims? After all, it supposedly is based in the language of the Fifth Amendment (the taking isn’t unconstitutional until just compensation has not been paid, and there’s been no “taking” until the government has made a final decision)? No matter, several courts have extended the Williamson County doctrine beyond takings claims, requiring plaintiffs in free speech, due process, and religious land use cases to exhaust administrative remedies before they come to federal court.

The Eleventh Circuit rejected the defense, but not because Williamson County simply doesn’t…

Continue Reading 11th Cir: RLUIPA Case Not Unripe Under Williamson County

Just over a month ago, the U.S Court of Appeals for the Fourth Circuit held that a federal takings case could actually proceed in federal court. Well yesterday, the same court issued a similar opinion in a related case, Town of Nags Head v. Toloczko, No. 12-1537 (Aug. 27, 2013).

We won’t go into detail because this post, by J. David Breemer at Pacific Legal Foundation (who also is counsel for the prevailing property owners) sets it all out very well.  But the decision involves abstention (Federal Courts law school flashback), Williamson County, and  beaches and public trust, so it’s well worth a read on its own.

If that doesn’t grab you, then nothing will!

Town of Nags Head v. Toloczko, No. 12-1537 (4th Cir. Aug. 27, 2013)


Continue Reading 4th Cir (Again): Federal Takings Claim Should Be Heard In Federal Court

Word comes that the California Supreme Court has denied review of the Court of Appeal decision in Lockaway Storage v. County of Alameda, No. A30874 (1st Dist. May 9, 2013). The court also rejected a request to “depublish” the First District’s opinion. Congratulations are again in order for colleague Tim Kassouni, who represents the property owners. 

Lockaway is the case in which the First District upheld the trial court’s finding of a Penn Central taking, affirming that the County of Alameda is liable for a temporary regulatory taking, and awarding the property owners nearly three-quarters of a million in attorney fees. This means the only avenue left open is a cert petition to the U.S. Supreme Court. If the County does so, it will probably have as much luck as the private property bar with convincing the Court to take a Penn Central case.

Here’s the (now-denied) Petition …

Continue Reading Cal Supremes Deny Review In Property Owner Penn Central Victory

13.EMDHI

Here are links to the cases and other materials (and more) we spoke about at today’s conference on Eminent Domain and Condemnation in Hawaii:

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Continue Reading Materials From Today’s Eminent Domain In Hawaii Conference

Please join us this upcoming Monday, August 19, 2013 from 1:00 – 2:30 p.m. Pacific Time for a telebriefing, “Regulatory Takings Claims in California – Implications of Recent Decisions and Advice for Practitioners and Government Agencies.”

Brad Kuhn (Nossaman, California Eminent Domain Report) is the program Chair and will serve as moderator, and Timothy Kassourni (Kassouni Law) will give us more details on his recent big win in a case under the Penn Central test. I’ll be talking Koontz and the Ninth Circuit’s latest foray into regulatory takings challenges to rent control.

It promises to be a fast-paced and informative hour, and there’s much here for the non-California practitioner. More information here (from Brad’s blog), and registration information is posted here. Continue Reading Telebriefing: Regulatory Takings Claims In California

Here is a deeper look at the two lawsuits filed lastweek in U.S. District Court in San Francisco against the City ofRichmond, California, for the city’s Mortgage Resolution Partners-backed plan to condemn underwater mortgages, specifically those held by out-of-state securitizedbonds, residential mortgage-backed securitization (RMBS) trusts. The first Complaint was brought by Wells Fargo and a number of mortgage holders onbehalf of their trusts (“Wells Fargo” suit). The other, filed concurrently, was brought Wednesday bythe Bank of New York Mellon for its trusts(“Bank of NYM suit”).

My Damon Key colleague Bethany C.K. Ace has digested the complaints and provides us with her thoughts on the cases below. She joined me and Mark M. Murakami as the co-author of Recent Developments in Eminent Domain: Public Use, which is forthcoming in the next edition of the Urban Lawyer.

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More On The Two Federal Lawsuits Challenging The Underwater Mortgage Taking Scheme…

Continue Reading Guest Post: More On The Two Federal Lawsuits Challenging The Underwater Mortgage Taking Scheme