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Here are links to the cases and other materials we spoke about at today’s teleconference with Professor Dan Mandelker and my OCA colleague Dwight Merriam:

  • Pipeline takings: Texas

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Continue Reading Teleconference Links: Do You Dare Even Say “Eminent Domain” After Kelo?

Hat tip to ABA State and Local Government Law colleague (and fellow U.H. Law School alum) Julie Tappendorf for the lead on a newly-published article: John M. Baker and Katherine M. Swenson, Koontz v. St. Johns River Water Management District: Trudging Through a Florida Wetland with Nine U.S. Supreme Court Justices, in the latest issue of the Zoning and Planning Law Report. Julie writes:

In the May 13, 2013 issue of West’s Zoning & Planning Law Report, John Baker and Katherine Swenson provide a compelling argument, or should I say six compelling arguments, for how the U.S. Supreme Court might decide the Koontz v. St. Johns River Water Management District case involving the denial of a wetlands permit.  For those of you who have been waiting 20 years for the Court to weigh in on another land use condition takings case (post Nollan-Dolan), or have been waiting since January…

Continue Reading Predicting The Koontz Case: Six Possible Outcomes

What we’re reading today:

  • “Battle of the Beach” – about the choices facing Jersey Shore towns in the aftermath of Sandy: “Offer ‘blighted’ areas to big developers or risk a slow decline. Residents worry about losing their homes.” Via the Wall St. Journal.

Continue Reading Monday Round-Up: Casinos, Sandy Aftermath, Mortgage Seizure

Mark your calendars: on August 21, 2013, The Seminar Group is putting on the 2d Annual Eminent Domain and Condemnation Law Conference, in Honolulu (Hilton Waikiki Beach). Our Damon Key partner Mark M. Murakami is the Planning Chair, and the rest of the faculty is pretty good, too. 

We’ll be speaking at two of the sessions: “Honolulu Rail Litigation Update – EIS and Acquisitions,” and “The Evolving Process of Eminent Domain – Condemnation Update; Recent Court Decisions of Interest.”

These topics will also be covered:

  • Contractor Licensing Update
  • Planning Update – Development Near the Right of Way
  • Uniform Relocation Act Benefits
  • Rail Development and Property Valuation
  • Ethics in Eminent Domain: Obligations of Condemnor’s and Condemnee’s Counsel

More information here. Download the brochure here, or below.

Hope you can join us for another great program.

2d Annual Eminent Domain & Condemnation in Hawaii – Aug 21, 2013 – Honolulu Continue Reading Eminent Domain And Condemnation Law Conference (Honolulu, Aug. 21, 2013)

volcanoThis photo and accompanying story (“Volcano officials concerned about risky activity at Kilauea ocean entry“) reminded us of an article we did a few years ago about issues of liability in these cases, the “compensation culture,” and a famous tort decision by the UK’s House of Lords. 

Our article, “Common Sense and Common Law – Who Does the Balancing of Social Utility?,” framed the issues in light of the situation at Hawaii Volcanoes National Park where visitors had (and apparently still have) the ability to simply walk out among the flowing lava:

Hawaii Volcanoes National Park is located on the island of Hawaii, and true to its name, its central attraction is one of the world’s most spectacularly active volcanoes, Kilauea. At the end of Chain of Craters Road, visitors may walk out past where it was cut off by a flow to witness a…

Continue Reading Is Anyone On The Hook If a Volcano Gawker Ends Up In Trouble?

Here’s the opinion of the California Court of Appeal (1st District) in an appeal we’ve been following, Lockaway Storage v. County of Alameda, No. A30874 (May 9, 2013), affirming that the County of Alameda is liable for a temporary regulatory taking under Penn Central, and awarding the property owners nearly three-quarters of a million in attorney fees.

The entire opinion is worth reviewing, but here’s the short story. Lockaway purchased agriculturally-zoned land in the East Bay area for use as a boat and RV storage facility, an alternate conditional use in ag-zoned land. For over a decade, the property had been used as such pursuant to a series of Conditional Use Permits. In 2000, however, the voters of the county approved an initiative which prohibited the development of storage facilties, unless approved by public vote. The ordinance contained a provision allowing “minimum development” if the prohibition would deprive…

Continue Reading Cal App Affirms Penn Central Temporary Regulatory Taking

Here’s the latest decision from the Hawaii Supreme Court applying the “private attorney general” doctrine, which allows a prevailing party to recover fees and costs in certain limited circumstances. In Kaleikini v. Yoshioka, No. SCAP-11-0000611 (May 2, 2013), the court awarded attorneys’ fees and costs incurred on appeal to the plaintiffs who prevailed in the case challenging the archaeological review for the $4+ billion Honolulu rail project. In its earlier opinion, the court held that the review could not be segmented, and that the city should not have started construction on any part of the project until archaeological review for the entire project had been completed.

Highlights:

  • Ask the appellate court only for those fees and costs you incur in that court; if you want fees incurred in the trial court, seek them there.
  • The going rate for highly skilled and experienced attorneys in Honolulu is darned reasonable

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Continue Reading HAWSCT’s Latest On The “Private Attorney General” Fee-Shifting Doctrine

Cle-logoFor those of you attending the Virginia Eminent Domain Conference, here’s the expanded papers on “Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings” and Public Use issues.

Use the password provided at the conference to open the pdf’s. It’s the same p/w for both. If you forgot the password, email me.

For those who did not attend, sorry folks, there are some benefits to coming to a conference! Y’all are going to have to wait for a bit — after a decent interval to allow the attendees to get their money’s worth, we’ll remove the password.

For more about the cases and books we discussed yesterday during my presentation on “Virginia’s Place in National Eminent Domain Trends, check these out:

  • Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) (gas station rent control, and the demise of the “substantially advance” test as a takings test).

     
    Continue Reading Materials From Today’s Virginia Eminent Domain Conference

    A short one from the U.S. Court of Appeals for the Fifth Circuit. In RBII, L.P. v. City of San Antonio, No. 11-50626 (Apr. 23, 2013), the court overturned a jury verdict that the city violated the due process and Fourth Amendment rights of a property owner when the city demolished its building without first providing notice that it was going to do so.

    The city believed a structure owned by the plaintiff was dilapidated and a danger, and needed to be demolished immediately. The city undertook environmental review, exhausted its internal procedures for demolition, notified the Historic Preservation office, turned off the utilities, and checked the permit register to see if any repairs were made. It accomplished this all in about two weeks. But it didn’t notify the property owner before it took down the structure.

    The owner filed suit in state court, and the city removed it…

    Continue Reading Fifth Circuit: City Not Required To Give Notice Prior To Demolishing Building If It Merely Believed There Was An Emergency

    Here’s one to brighten your day, courtesy of the the U.S. District Court for the Middle District of Flordia (that’s Tampa, to all you non-Floridians). In Hillcrest Property, LLP v. Pasco County, No. 8:10-cv-819-T-23TBM (Apr. 12, 2013), the court held the county’s “Right of Way Preservation Ordinance” that allows it to land bank for a future road corridors by means of an exaction (more details on the ordinance below), is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation.” Slip op. at 4.

    We’ve seen this situation before — the government wants to build roads, but it either doesn’t have the money to buy or condemn the necessary property to do so, or it simply figures it can get it another way. The county had such plans, and designated future transportation corridors on its comprehensive plans. In 2005, the county adopted the…

    Continue Reading Fla Fed Ct: Exaction Scheme Is “Constitutional Mischief” To Avoid “Nettlesome Payment of ‘Just Compensation’”